.02 MCA-2006-02 Hert/Spec Trees
CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014
DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM
Application:
Applicant:
Property Owner:
Property Location:
MCA-2006-02
City of Cupertino
Various
Citywide
Agenda Date: January 23, 2007
Summary: Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen
Trees)
RECOMMENDATION
Staff recommends that the Planning Commission recommend that the City Council:
1. Approve MCA-2006-02 according to the Model Resolution.
BACKGROUND
At the December 12th meeting, the Planning Commission continued its discussion of
amendments to the tree ordinance and recommended that a draft ordinance be
provided incorporating staff's recommendations for simplifying the ordinance by
allowing the Director of Community Development to make determinations on tree
removals when not associated with a development application and by providing
prescriptive measures for replacing trees in conjunction with tree removals. Allowing
the Director of Community Development to make some tree removal determinations is
consistent with the City Council's direction on the tree ordinance from the August 15,
2006 City Council meeting. These changes would also reduce processing time and costs
to the City in terms of staff time, resources and Planning Commission meetings.
Further, the prescriptive measures would clarify the tree removal permit process and
tree replacement requirements for the public.
Staff also recommended that retroactive tree removal permits be handled by the
Director of Community Development to simplify the process. It was explained that it
would be difficult to assess penalties for the removal of protected trees, particularly if a
property owner was willing to retroactively follow the prescribed tree replacement
table guidelines, since the objective of the tree removal process is to replant trees.
However, if a property owner was not willing to follow the requirements, then the City
could take legal action pursuant to the existing penalty section of the ordinance,
Section 14.18.230. A recommendation was also made to charge a fee for the additional
staff time and expense to review retroactive tree removals. It was explained that this
fee could serve as a /I stick" approach to discourage retroactive tree removals.
Consequently, the Commission indicated further discussion is needed to address the
issue of penalty/administrative fees for retroactive tree removals and the possibility of
establishing an administrative hearing process.
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MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18
January 23,2007
Page 2
The Commission also indicated the need to address tree replacement standards, in-lieu
tree replacement fees, standardization of protected tree size, and additions to the
protected specimen tree list.
DISCUSSION
A draft model ordinance incorporating staff's recommendations is included as Exhibit
A. The staff-recommended model ordinance incorporates the proposed changes with
II strike throughs" for recommendations to delete language and II underlines" for
recommendations to add language to the previous version of the model ordinance that
the Planning Commission reviewed at its December 12th meeting.
The staff-recommended model ordinance includes changes based upon staff's
recommendations as proposed at the December 12th meeting, additional information as
requested by the Planning Commission and minor clean up/clarification items.
The previous version of the model ordinance that the Planning Commission reviewed
on December 12th is included as Exhibit B.
The main discussion items are as follows:
Approval Authority
· Staff-level approvals for tree
removal permits, except for
heritage trees and tree
removals in conjunction with
development applications
· Ordinance modifies the section on approval
authority allowing the Director of Community
Development to make determinations on tree
removal permits, except for heritage tree
removals and tree removals in conjunction with
development applications.
· Heritage tree removals would require a
Planning Commission hearing and approval.
Tree removals in conjunction with development
applications would be reviewed by the approval
authority of the development application, which
could include the Director of Community
Development, the Design Review Committee,
the Planning Commission or City Council.
. Ordinance allows Director of Community
Development to review and determine
retroactive tree removals in accordance with the
tree removal a lication re uirements.
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MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18
January 23,2007
Page 3
Noticing
Identify noticing
requirements for decisions of
the Director of Community
Development and Design
Review Committee
Penalties
· Higher penalty/administrative
fees for retroactive tree
removals
. Possibility of establishing an
administrative hearing process
Tree Replacements
Provide prescriptive tree
replacement requirements
· Section on Noticing and Posting has been
modified to include noticing requirements for
decisions of the Director of Community
Development and Design Review Committee.
These require a 300-foot radius noticing.
Noticing for hearings by the Planning
Commission or City Council would require a
500-foot radius noticin
Staff indicated the possible hardship in
assessing penalties on retroactive tree removals
if tree replacement requirements are willingly
met.
· New section on Retroactive Tree Removal has
been added that requires the payment of a
retroactive tree removal fee.
. Staff recommends a retroactive tree removal fee
of $2,536, which is the same as the existing
Planning Commission Tree Removal fee. This
could serve as a /I stick" approach to discourage
retroactive removals.
· The "carrot" approach is to lower the tree
removal application fees for non-retroactive
removals, which would be $150 per tree and
$75 for each additional tree requested to be
removed.
· Staff does not recommend establishing an
administrative hearing process as it would
increase costs to the City to administer these
hearings; they could not be conducted by City
staff.
· Section on Tree Replacements has been
modified to include specific number and size of
replacement trees for the removal of a protected
tree. Standards have been provided by the City
Arborist.
· Replacement requirements for the removal of
heritage trees and trees with trunk size greater
than 36" DBH (diameter at breast height) would
require an assessed value based upon the ISA
Guide for Plant Appraisal to be calculated by a
certified arborist.
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MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18
January 23,2007
Page 4
Tree Replacements
· Provide prescriptive in-lieu
tree replacement fees
Standardized in-lieu tree replacement fees are
not simple to calculate, given that the
replacement tree value will vary depending on
type and size of tree chosen. Additionally,
availability of trees can affect pricing.
Planning Commission raised concerns that in
some situations, particularly related to single-
family residential properties, the valuation of a
removed protected tree based upon the ISA
Guide for Plant Appraisal could be overly
burdensome for a property owner.
Section on Tree Replacement has been modified
to require an in-lieu tree replacement fee based
on the purchase price and installation cost of the
replacement trees if replacement trees cannot be
accommodated on site. In keeping with the
Commission's concerns, staff believes these
costs would not be as burdensome as using the
ISA appraisal guidelines.
ISA appraisal guidelines would be used for
heritage tree removals and trees with a trunk
size over 36 inches as these types of trees would
likely provide a more significant level of value
as heritage trees or large established trees.
For examples of in-lieu tree replacement fees,
staff has contacted various nurseries and has
found the following approximate purchase and
installation costs for the following specimen
trees. Oak trees are likely considered the most
valuable of the protected specimen trees as is
shown by their approximate purchase and
installation costs:
Oak trees:
· 24-inch rootball size: $360-600+
40-inch rootball size: $800+
· 48-inch rootball: $5,000+
72-inch rootball: $18,000+
Deodar Cedar:
· 24-inch box: $220
36-inch box: $700
· 48-inch box: $1600
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MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18
January 23, 2007
Page 5
Tree Replacements
Provide prescriptive
replacement fees
in-lieu tree
Protected Tree Size
Standardize or
protected tree
specimen trees
differentiate
SIze of
Specimen Tree List
· Add to, replace, or maintain
the existing specimen tree list
· Consider adding native trees
including madrones,
redwoods, western sycamore,
and bay laurels.
Rear Yard Tree Removals
Consider rear yard tree
removals
· Require tree removal permits
for rear ard tree removals
Tree Management Plan
· Clarify criteria for a tree
management plan
Blue Atlas Cedar:
24-inch box: $360
· 36-inch box: $800
· 48-inch box: $1,900
California Buckeye:
24-inch box: $300
36-inch box: $800
Big Leaf Maple:
24-inch box: $260
36-inch box: $750
· Ordinance recommends standardizing the
protected tree size for specimen trees. This will
simplify the ordinance and clarify requirements
for the public.
· Staff believes differentiating tree sizes for each
specimen tree will create additional confusion to
the ordinance and for the ublic.
Ordinance . recommends maintaining the
existing specimen tree list consisting of the five
species of trees to achieve the goal of
simplifying the ordinance.
Staff believes adding to the list will create
greater confusion and burden on the public to
know a larger number of tree species that would
be rotected and could affect their ro ert .
. Rear yard tree removals still require a tree
removal permit
· Ordinance includes a finding to allow for rear
yard tree removals, except for oak trees with a
trunk size eater than 18 inches.
Ordinance indicates what is required to be
submitted for a tree management plan.
Ordinance clarifies that tree thinning/ removals
are allowed in accordance with an approved
tree mana ement Ian.
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MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18
January 23, 2007
Page 6
General Clean Up / Clarification ·
I terns
Purpose section
Heritage tree designation
section
Plan of protection section
Appeal section
Ordinance moved language In the Purpose
section for better clarity.
Language regarding owner notification and
owner appeal is removed from the heritage tree
designation section, since this section has been
revised to allow only the property owner to
initiate designation of a heritage tree.
Language in the Plan of Protection section
clarifies that the approval authority adopts a
maintenance plan for protected trees.
Appeal section has been clarified to include
appeals of decisions by the Director of
Community Development and Design Review
Committee.
Retroactive Tree Removal Administrative Fee
Should the Planning Commission recommend approval of a Model Ordinance with the
inclusion to require a retroactive tree removal fee, staff recommends that the Planning
Commission also separately recommend a specific fee amount, so that the City Council
may consider the Commission's recommendation and establish a retroactive tree
removal fee with this municipal code amendment.
Prepared by:
Approved by:
Aki Honda Snelling, Senior Planner -------
Steve Piasecki, Director of Community Developm~
Attachments
Exhibit A - Staff-Proposed Draft Model Ordinance
Exhibit B - Previous Draft Model Ordinance from December 12th.
Exhibit C - Minutes from the December 12, 2006 Planning Commission meeting
Exhibit D - Planning Commission report of December 12, 2006, including all
attachments
G:\Planning\PDREPORT\pcMCAreports\ Tree Ordinance, Jan 23 PC Mtg.doc
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MCA-2006-02
CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014
MODEL RESOLUTION
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
RECOMMENDING THAT THE CITY COUNCIL AMEND CHAPTER 14.18 OF THE
CUPERTINO MUNICIPAL CODE RELATED TO PROTECTED TREES
-----------------------------------------------------------
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Recommendation of approval is based on Exhibit A.
-----------------------------------------------------------
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PASSED AND ADOPTED this 23rd day of January 2007 at a Regular Meeting of the Planning
Commission of the City of Cupertino, State of California, by the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
ATTEST:
APPROVED:
Ciddy Wordell
City Planner
Lisa Giefer, Chairperson
Planning Commission
G :\Planning\PDREPORT\RES\2006\MCA-2006-02, Trees.doc
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Exhibit A
CHAPTER 14.18: PROTECTED TREES
Section
14.18.010 Purpose.
14.18.020 Definitions.
14.18.025 Actions Prohibited.
14.18.030 Retention promoted.
14.18.035 Protected trees.
14.18.040 Heritage tree designation.
14.18.050 Heritage tree list.
14.18.060 Plan of protection.
14.18.070 Recordation.
14.18.080 Heritage Tree Identification tag.
14.18.130 Enforcing authority.
14.18.140 Exemptions.
14.18.145 Tree Management Plan
14.18.150 Application and Approval Authority for Tree Removal permit.
14.18.160 Director to inspect.
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14.18.170 Application Requirements.
14.18.175 Noticing
14.18.180 Review and determination of application .
14.18.185 Tree Replacement.
14.18.188 Retroactive tree removal permit
14.18.190 Protection during conservation.
14.18.200 Protection plan before permit granted.
14.18.220 Notice of action on permit-Appeal.
14.18.230 Penalty.
14.18.010 Purpose.
In enacting this chapter, the City of Cupertino recognizes the substantial
economic, environmental and aesthetic importance of its tree population.
Protected trees are considered a valuable asset to the community. The
protection of such trees in all zoning districts is intended to preserve this valuable
asset. The City finds that the preservation of protected trees on private and
public property, and the protection of all trees during construction, is necessary
for the best interests of the City and of the citizens and public thereof, in order to:
A. Protect property values;
B. Assure the continuance of quality development;
C. Protect aesthetic and scenic beauty;
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D. Assist in the absorption of rain waters, thereby preventing erosion of top
soil, protecting against flood hazards and the risk of landslides;
E. Counteract air pollutants by protecting the known capacity of trees to
produce pure oxygen from carbon dioxide;
F. Maintain the climatic balance (e.g., provide shade);
G. Help decrease potential damage from wind velocities;
H. Pre::;erve protected tree::;. For the above reasons, the City finds it is in
the public interest, convenience and necessity to enact regulations controlling the
care and removal of protected trees within the City in order to retain as many
trees as possible, consistent with the individual rights to develop, maintain and
enjoy private and public property to the fullest possible extent.
Protected tree::; ore eon::;idered 0 ',,'oluoble o::;::;et to the community. The
protection of ::;uch tree::; in 011 zoning di::;trict::; including re::;idential zone::; i::;
intended to pre::;erve thi::; valuable oo::;ot. (Ord. 1573, 9 2, 1991; Ord. 1543, 9 2,
1991 )
14.18.020 Defmitions.
Unless otherwise stated, the following definitions pertain to this chapter.
A. "City" means the City of Cupertino situated in the County of Santa Clara,
California.
B. "Developed residential" means any legal lot of record, zoned single-
family, duplex, agricultural residential and residential hillside, with any
structure (principal or accessory) constructed thereon.
C. "Development application" means an application for land alteration or
development, including but not limited to subdivision of property,
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rezoning, architectural and site approval, two-story residential permit,
minor residential permit, planned unit development, variance, and use
permit.
D. "Heritage tree" means any tree or grove of trees which, because of
factors including, but not limited to, its historic value, unique quality, girth, height
or species, has been found by the Planning Commission to have a special
significance to the community.
E. "Owner" shall include the legal owner of real property within the City, and
any lessee of such owner.
F. "Person" shall include an individual, a firm, an association, a corporation,
a co-partnership, and the lessees, trustees, receivers, agents, servants and
employees of any such person.
G. "Private property" shall include all property not owned by the City or any
other public agency.
H. "Public property" includes all property owned by the City or any other
public agency.
I. "Protected tree" means any class of tree specified in Section 14.18.035.
J. "Tree removal" means any of the following: (1) Complete removal, such
as cutting to the ground or extraction, of a protected tree or (2) Severe pruning,
which means the removal of more than one-fourth of the functioning leaf and
stem area of a protected tree in any twelve-month period of 0 protected tree as
determined by the Community Development Director. (Ord. 1886, (part), 2001;
Ord. 1835, (part), 1999; Ord. 1810, (part), 1999; Ord. 1715, (part), 1996; Ord.
1573,93,1991; Ord. 1543,93,1991)
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14.18.25 Actions Prohibited
A. It is unlawful to remove or kill any protected tree; and
B. It is unlawful to remove any protected tree in any zoning district without
first obtaining a tree removal permit.
14.18.030 Retention Promoted.
Protected trees are considered an asset to the community and the pride of
ownership and retention of these species shall be promoted. The Director of
Community Development shall conduct an annual review of the status of heritage
trees and report the findings to the Planning Commission. (Ord. 1715, (part),
1996; Ord. 1543,94.1,1991)
14.18.035 Protected Trees.
Except as otherwise provided in Section 14.18.140, Exemptions, the
following trees shall not be removed from private or public property, including
street trees subject to Chapter 14.12 of the Cupertino Municipal Code, without
first obtaining a tree removal permit:
A. Heritage trees in all zoning districts.
B. All trees of the following species that have a minimum single-trunk
diameter of ten inches (31-inch circumference) or minimum 20 inch multi-
trunk diameter of 20 inches (63-inch circumference) measured 4-1/2 feet
from natural grade:
1. Oak trees
2. California Buckeye
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3. Big Leaf Maple
4. Deodar Cedar
5. Blue Atlas Cedar
C. Any tree required to be planted or retained as part of an approved
development application, building permit, tree removal permit or code
enforcement action in all zoning districts.
D. Approved privacy protection planting in R-1 zoning districts.
14.18.040 Heritage tree designation.
Application for designation of a heritage tree may only be initiated by the
owner of property on which the tree is located. An application for a heritage tree
designation shall includeThe applicant rcque3ting the heritage tree de::;ignation
::;hall ::;ubmit an application 'v'v'ith the follmving:
1. Assessor's parcel number of the site;
2. Description detailing the proposed heritage tree's special aesthetic,
cultural, or historical value of significance to the community; and
3. Photographs of the tree(s).
Application for designation of a heritage tree shall be referred to the Planning
Commission for review and determination in accordance with Section 19.124 of
the Cupertino Municipal Code.
The Planning Commission, may, by resolution, designate a tree or grove of
trees as a heritage tree(s).
Prior to adoption of such a resolution, not Ie::;::; than ten days written notice
::;hall be delivered to the ovmer. If the owner of the property prote::;t::; tho
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de3ignation, an appeal can be initiated. (Ord.1715, (part), 1996; Ord. 1630,
(part), 1993; Ord. 1543, 9 4.2, 1991)
14.18.050 Heritage Tree List.
A heritage tree list shall be created and amended by resolution. The list shall
include the reason for designation, tree circumference, species name, common
name, location and heritage tree number. (Ord. 1543,94.3, 1991)
14.18.060 Plan of Protection.
As part of a development application:
A. The approval authority Pbnning Commi:J3ion shall adopt con3ider a
maintenance plan of protection for protected trees.:. developed by the Community
Development Department or a City retained certified arbori3t. The protection
plan ::;hall include information for correct pruning, maintenance and fertilization
method3. It shall be the property owner(s) responsibility to protect the trees.
- B. It 3hall be the property 0':mer(3) re3pon3ibility to protect the tree.
BG. Privacy protection planting in R-1 zoning districts shall be maintained.
Landscape planting maintenance includes irrigation, fertilization and pruning as
necessary to yield a growth rate expected for a particular species. Where
privacy protection planting dies it must be replaced within thirty days with the
location, size and species described in Ordinance No. 1799 (privacy protection)
and its appendix. The affected property owner, with privacy protection planting
on his/her lot, is required to maintain the required planting and shall be required
to comply with Section 14.18.070. (Ord. 1810, (part), 1999; Ord. 1630, (part),
1993; Ord. 1543, 99 4.4, 4.5, 1991)
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14.18.070 Recordation.
All protected trees required to be retained 0:::; port of 0 development
application under Section 14.18.035C, except for trees on public property, shall
have retention information placed on the property deed via a conservation
easement in favor of the City, private covenant, or other method as deemed
appropriate by the Director. The recordation shall be completed by the property
owner prior to final map or building permit issuance, or at a time as designated
by the Director of Community Development when not associated with a final map
or building permit issuance.-----;-(Ord. 1573, 9 4.6, 1991; Ord. 1543, 9 4.6, 1991)
14.18.080 Heritage Tree Identification Tag.
Heritage trees shall have on them an identification tag, purchased and placed
by the City, inscribed with the following information:
CITY OF CUPERTINO
HERITAGE TREE NO.
Please do not prune or cut
before contacting the City.
(Ord. 1543,94.7,1991)
14.18.130 Enforcing Authority.
The Director of Community Development, or his/her authorized
representative, shall be charged with the enforcement of this chapter. (Ord.
1543,96.1, 1991)
14.18.140 Exemptions.
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The following situations do not require a tree removal permit prior to removal:
A. Removal of a protected tree in case of emergency caused by the
hazardous or dangerous condition of a tree, requiring immediate action for the
safety of life or property (e.g., a tree about to topple onto a principle dwelling due
to heavy wind velocities, a tree deemed unsafe, or a tree having the potential to
damage existing or proposed essential structures), upon order of the Director of
Community Development, or any member of the sheriff or fire department.
However,_ a subsequent application for tree removal must be filed within five
working days as described in Sections 14.18.150--14.18.170 of this chapter. The
Director of Community Development will approve the retroactive tree removal
permit application and may require tree replacements in conjunction with the
approval. No application fee or othcr approval proC033 shall be required in this
situation.
B. Dead trees, in the opinion of the Director of Community Development.
However, a subsequent application for a tree removal must be filed within five
working days as described in Section 14.18.150 - 14.18.170 of this chapter. The
Director of Community Development will approve the retroactive tree removal
permit application and may require tree replacements in conjunction with the
approval. No application fee or othcr approval procc33 shall be required in this
situation.
C. Thinning out/removing of trees in accordance with a recorded tree
management plan that has been approved in accordance with Section 14.18.145.
No tree removal permit is required.
D. Public utility actions, under the jurisdiction of the Public Utilities
Commission of the State of California; as may be necessary to comply with their
safety regulations, or to maintain the safe operation of their facilities. (Ord. 1835,
(part), 1999; Ord. 1715, (part), 1996; Ord. 1630, (part), 1993; Ord. 1543,97.1,
1991 )
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14.18.145 Tree Management Plan
In conjunction with the approval of a landscape plan on the :Jubject
property, the property owner shall have retention information placed on the
property in accordance with Section 14.18.070, referring to may record a tree
management plan 8fT-t~3-t:l-l3jcct pmpcrty that will inc!ude C;Utl:i-.C criteria for the
removal of certain trees in the future by anticipating laying out the eventual
growth of trees on the property and specifying a time frame in which the trees
may require removal to prevent overcrowding of trees on the property. The tree
management plan shall include the following:
A. A tree plan indicating all existing trees to be retained and all new
trees to be planted that are part of the approved landscape plan.
B. Labeling of the species, size in DBH at planting or at time of tree
management plan approval, location and eventual growth size of each tree on
the tree plan.
C. A written explanation of the specific tree(s) to be removed to
prevent overcrowding, including the eventual growth size in DBH at which
time the tree is to be removed, and a time frame in which the tree(s) will reach
the eventual growth size.
The tree management plan shall be revie\ved and approved by the
Dpproval authority approving the landscape plan prior to recordation of the tree
management plan.
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Trees that are listed to be removed in the tree management plan may be
removed within the specified time frame per the tree management plan without a
tree removal permit.
14.18.150 Application and Approval Authority for Tree Removal Permit.
A. No person shall directly or indirectly remove or cause to be removed any
protected tree without first obtaining a tree removal permit, unless such
tree removal is exempt per Section 14.18.140. Application for a tree
removal permit shall be filed with the Department of Community
Development on forms prescribed by the Director of Community
Development and shall state the number and location of the trees to be
removed, and the reason for removal of each.
B. Applications for protected tree removal shall be referred to the Director
of Community Development Planning Commb:Jion for final review and
determination in accordance with Sectio~ 14.18.220 and Chapter
19.124, except for Heritage tree removals and tree removals in
conjunction with development applications:- The Director of Community
Development Planning Commi:Jsion may approve, conditionally approve,
or deny the application for a tree removal permit. A tree replacement
requirement may be required in conjunction with the tree removal permit.
The applicable tree removal permit fee shall apply.---;-
C. Application for tree removals in conjunction with a development
application shall be considered 'Nhcn a development application b under
consideration by the approval authority concerning the same property as
the affected tree removal permit application, and the determination on
the tree removal permit shall be made concurrently by the approval
authority.
D. Application for removal of a Heritage tree shall be referred to the
Planning Commission for final review and determination in accordance
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with Section 14.18.220 and Chapter 19.124. (Ord. 1630, (part), 1993;
Ord. 1573, ~8.1 (part), 1991; Ord. 1543, ~ 8.1 (part), 1991)
14.18.160 Director to Inspect.
Upon receipt of an application for removal of a protected tree, the Director of
Community Development or his/her authorized representative will, within fourteen
days, inspect the premises and evaluate the request pursuant to Section .
14.18.180 of this chapter. Priority of inspection shall be given to those requests
based on hazard or dangcr of disease. The Director of Community Development
may refer any such application to another department or to the Planning
Commission or an appropriate committee of the City for a report and
recommendation. Where appropriate, the Director of Community Development
may also require the applicant, at his own expense, to furnish a report from a
staff-approved arborist, certified by the International Society of Arboriculture.
(Ord.1573, ~8.1 (part), 1991; Ord.1543, ~8.1 (part), 1991)
14.18.170 Application Requirements.
A request for removal of any heritage or protected tree shall include the
following:
A. Application information. Application for a tree removal permit
shall be available from and filed with the Community
Development Department and shall contain the following
information, unless waived by the Director of Community
Development:
1. A written explanation of why the tree(s) should be removed;
2. Photograph(s) of the tree(s);
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3. An arborist report from a staff-approved arborist, certified by the
International Society of Arboriculture, when required by the
Director of Community Development;
4. Signature of the property owner and homeowner's association
(when applicable) with proof of a vote of the homeowner's
association.
5. Replanting plan
6. Other information deemed necessary by the Director of
Community Development to evaluate the tree removal request;
7. Permit fee, where applicable;
8. Tree survey plan indicating the number, location(s), variety and
size (measured four and a half feet above grade) of tree(s) to be
removed.
14.18.175 Notice and Posting
A. Notice of any decision of the Director of Community Development and Design
Review Committee shall be given in the same manner as provided in Section
19.28.100B.
~Notice of any public hearing under this chapter shall be given in the same
manner as provided in Chapter 19.124 of the Cupertino Municipal Code.
However, notice of such hearing shall be mailed to each owner of record of real
property within five hundred feet of the exterior boundary of the property for
which the application is sought.
14.18.180 Review and Determination of Application.
A. The approval authority shall approve a tree removal permit only after making
at least one of the following findings:
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1. That the tree or trees are irreversibly diseased, are in danger of
falling, can cause potential damage to existing or proposed essential structures,
or interferes with private on-site utility services and cannot be controlled or
remedied through reasonable relocation or modification of the structure or utility
services;
2.That the location of the trees restricts the economic enjoyment of
the property by severely limiting the use of property in a manner not typically
experienced by owners of similarly zoned and situated property, and the
applicant has demonstrated to the satisfaction of the approval authority that there
are no reasonable alternatives to preserve the tree(s).
3. That the protected tree(s) are a detriment to the subject property
and cannot be adequately supported according to good urban forestry practices
due to the overplanting or overcrowding of trees on the subject property.
4. That the protected tree, excluding any oak tree with an 18-inch
DBH (diameter at breast height) or greater, if located in the rear yard of a single-
family residential property, does not provide privacy protection or significant
visual value to the property and surrounding neighborhood and restricts the
economic enjoyment of the property by severely limiting the use of the rear yard
in a manner not typically experienced by owners of similarly zoned and situated
property.
B. The approval authority may refer the application to another
department or commission for a report and recommendation.
C. The approval authority shall either approve, conditionally
approve or deny the application.
D. The approval authority may require a tree replacement
requirement in conjunction with a tree removal permit. (Ord.
1573,99.1,1991; Ord. 1543,99.1,1991)
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Section 14.18.185 Tree Replacement
A. The approval authority may impose the following replacement
standards for approval of each tree to be removed in conjunction with an
approved tree removal permit, unless deemed otherwise unnecessary by
the approval authority:
~Replacement trees, of a species and size as designated by the approval
authority and consistent with the replacement value of each tree to be
removed uGing the mont recent edition of the Guide for Plant Appraisal,
published by the Council of Tree and Land:xape Appraisers, shall be
planted on the subject property on which the tree(s) are to be removed in
the location(s) as designated by the approval authority. Table A may be
used as a basis for this requirement. The person requesting the tree
removal permit shall pay the cost of purchasing.!.-Elfl-€l planting and
maintaining the replacement trees.
&;~If a tree, excluding heritage trees and trees with a trunk size greater
than 36 inches, cannot be reasonably planted on the subject property, an
in-lieu tree replacement fee based upon the purchase and installation cost
the value of the replacement tree as determined by the Director of
Community Development,removed tree(s) shall be paid to the City's tree
fund (\vill v.'e be establiahing thin???) to:
h.L Add or replace trees on public property in the vicinity of the
subject property; or
th~ Add trees or landscaping on other City property. Replacement
value of a tree aha II be determined uaing the most recent edition of
the Guide for Plant Apprabal, as preparcd by the City Arborbt.
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C. For removal of a heritage tree or tree with a trunk size greater than 36
inches, the replacement tree(s) and in-lieu tree replacement fee shall be
based upon the valuation of the removed tree by using the most recent
edition of the ISA Guide for Plant Appraisal published by the Council of
Tree and Landscape Appraisers.
Table A - Replacement Tree Guidelines Standord
Trunk Size of Number of Minimum Size of
Remo'Jed Tree Replacement Replacement
(Measured 4 ~~ Tree::; +Fee
feet above grade)
12 to 24 inche::; (or 4- 24 inch box
38 75 inch
circumference)
Greater than 24 4- 36 inch box
inches
Heritage Tree 4- 48 inch box
Trunk Size of Removed Replacement Trees
Tree (Measured 4 ~
feet above grade)
Up to 12 inches One 24" box tree
Over 12 inches and up Two 24" box trees
to 18 inches
Over 18 inches and up Four 24" box trees
to 24 inches or
-
One 36" box tree
Over 24 inches and up Eight 24" box trees
to 36 inches or
-
Three 36" box trees
16
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or
-
Two 48" box trees
Over 36 inches Valuation based on ISA Guide for Plant
Appraisal
Heritage tree Valuation based on ISA Guide for Plant
Appraisal
14.18.188 Retroactive Tree Removal
An application for a retroactive tree removal shall be required for any protected tree
removed prior to approval of a tree removal pennit. The application shall be filed with
the Department of Community Development on fOlms prescribed by the Director of
COlmnunity Development and shall be subiect to the requirements of a tree removal
pennit. The application shall pay a retroactive tree removal pennit fee.
14.18.190 Protection During Construction.
Protected trees and other trees/plantings required to be retained by virtue of
a development application, building permit, or tree removal permit shall be
protected during demolition, grading and construction operations. The applicant
shall guarantee the protection of the existing tree(s) on the site through a
financial instrument acceptable to the Director of Community Planning and
Development. (Ord. 1543, 9 10.1, 1991)
14.18.200 Protection Plan Before Permit Granted.
A. A plan to protect trees described in Section 14.18.190 shall be submitted
to the Director of Public Works and to the Director of Community Development
prior to issuance of a demolition, grading or building permit. The plan shall be
prepared and signed by a licensed landscape architect or arborist certified by the
International Society of Arboriculture and shall be approved by the Director of
Community Development. The Director of Community Development shall
17
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evaluate the tree protection plan based upon the tree protection standards
contained in Appendix A at the end of this chapter.
B. The Director of Community Development may waive the requirement for
a tree protection plan both where the construction activity is determined to be
minor in nature (minor building or site modification in any zone) and where the
proposed activity will not significantly modify the ground area within the drip line
or the area immediately surrounding the drip line of the tree. The Director of
Community Development shall determine whether the construction activity is
minor in nature and whether the activity will significantly modify the ground area
around the tree drip line. (Ord. 1543, 9 10.2, 1991)
14.18.220 Notice of Action on Permit-Appeal.
A. Notice of the decision on an application for a protected tree removal
permit by the approval authority Planning Commission, shall be mailed to the
applicant.
B. Any decision made by the Director of Community Development and
Design Review Committee may be appealed in accordance with Chapter 19.134.
C. Any decision made by the Planning Commission may be appealed to the
City Council in accordance with Chapter 19.136. Such decision may be
appealed to the City Council by filing a written notice of appeal with the City Clerk
within ten working days after the mailing of such notice.
D. The City Clerk shall notify the applicant of the date, time and place for
hearing the appeal. The City Council may affirm, reverse, or modify the decision
of the Director of Community Development or Planning Commission, and its
decision shall be final. (Ord. 1573, 9 11.1, 1991; Ord. 1543, 9 11.1, 1991)
14.18.230 Penalty.
18
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Violation of this chapter is deemed a misdemeanor unless otherwise
specified. Any person or property owners, or his agent or representative who
engages in tree cutting or removal without a valid tree removal permit is guilty of
a misdemeanor as outlined in Chapter 1.12 of this code and/or may be required
to comply with Sections 14.18.150, 14.18.170. Notwithstanding any other
provisions of this section, the unauthorized removal of a tree planted solely for
privacy protection purposes pursuant to Section 14.18.060 C shall constitute an
infraction. (Ord. 1810, (part), 1999; Ord. 1731, (part), 1996; Ord. 1543, S 12.1,
1991 )
APPENDIX A
STANDARDS FOR THE PROTECTION OF TREES DURING GRADING AND
CONSTRUCTION
OPERATIONS
The purpose of this appendix is to outline standards pertaining to the
protection of trees described in Section 14.18.200 of Chapter 14.18. The
standards are broad. A licensed landscape architect or International Society of
Arboriculture certified arborist shall be retained to certify the applicability of the
standards and develop additional standards as necessary to ensure the property
care, maintenance, and survival of trees designated for protection.
Standards
1. A plot plan shall be prepared describing the relationship of proposed
grading and utility trenching to the trees designated for preservation.
Construction and grading should not significantly raise or lower the ground level
beneath tree drip lines. If the ground level is proposed for modification beneath
19
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the drip line, the architectlarborist shall address and mitigate the impact to the
tree(s).
2. All trees to be preserved on the property and all trees adjacent to the
property shall be protected against damage during construction operations by
constructing a four-foot-high fence around the drip line, and armor as needed.
The extent of fencing and armoring shall be determined by the landscape
architect. The tree protection shall be placed before any excavation or grading is
begun and shall be maintained in repair for the duration of the construction work.
3. No construction operations shall be carried on within the drip line area of
any tree designated to be saved except as is authorized by the Director of
Community Planning and Development.
4. If trenching is required to penetrate the protection barrier for the tree, the
section of trench in the drip line shall be hand dug so as to preclude the cutting of
roots. Prior to initiating any trenching within the barrier approval by staff with
consultation of an arborist shall be completed.
5. Trees which require any degree of fill around the natural grade shall be
guarded by recognized standards of tree protection and design of tree wells.
6. The area under the drip line of the tree shall be kept clean. No construction
materials nor chemical solvents shall be stored or dumped under a tree.
7. Fires for any reason shall not be made within fifty feet of any tree selected
to remain and shall be limited in size and kept under constant surveillance.
8. The general contractor shall use a tree service licensee, as defined by
California Business and Professional Code, to prune and cut off the branches
that must be removed during the grading or construction. No branches or roots
shall be cut unless at first reviewed by the landscape architectlarborist with
approval of staff.
20
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9. Any damage to existing tree crowns or root systems shall be repaired
immediately by an approved tree surgeon.
10. No storage of construction materials or parking shall be permitted within the
drip line area of any tree designated to be saved.
11. Tree protection regulations shall be posted on protective fencing around
trees to be protected <
Diselaimer:
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Top of Form
21
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Exhibit 8
CHAPTER 14.18:
PROTECTED TREES
Section
14.18.010 Purpose.
14.18.020 Definitions.
14.18.025 Actions Prohibited.
14.18.030 Retention promoted.
14.18.035 Protected trees.
14.18.040 Heritage tree 9Qesignation.
14.18.050 Heritage tree list.
14.18.060 Plan of protection.
14.18.070 Recordation.
14.18.080 Heritage Tree Identification tag.
14.18.000 Application to remove.
14.18.100 Notice li::;t to accompany application.
14.18.110 Appeal
14.18.120 Permit required for removal
1
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14.18.130
14.18.140
14.18.145
Enforcing authority.
Exemptions.
Tree Management Plan
14.18.150
14.18.160
14.18.170
14.18.175
Application and Approval Authority for Tree Removal~'permit.
Director to inspect.
Review of aApplication Requirements.
Noticing
14.18.180
14.18.185
Review and determination of application standards.
Tree Replacement.
14.18.190
14.18.200
14.18.210
14.18.220
14.18.230
Protection during conservation.
Protection plan before permit granted.
^pplicont to guarantee protection.
Notice of action on permit-Appeal.
Penalty.
14.18.010 Purpose.
In enacting this chapter, the City of Cupertino recognizes the substantial
economic, environmental and aesthetic importance of its tree population. The
City finds that the preservation of specimen protected and heritage trees on
private and public property, and the protection of all trees during construction, is
2
) <3<-')
necessary for the best interests of the City and of the citizens and public thereof,
in order to:
A. Protect property values;
B. Assure the continuance of quality development;
C. Protect aesthetic and scenic beauty;
D. Assist in the absorption of rain waters, thereby preventing erosion of top
soil, protecting against flood hazards and the risk of landslides;
E. Counteract air pollutants by protecting the known capacity of trees to
produce pure oxygen from carbon dioxide;
F. Maintain the climatic balance (e.g., provide shade);
G. Help decrease potential damage from wind velocities;
H. Preserve protected Protect :Jpecimen and heritage oal< trees. For the
above reasons, the City finds it is in the public interest, convenience and
necessity to enact regulations controlling the care and removal of protected
:Jpecimen and heritage trees within the City in order to retain as many trees as
possible, consistent with the individual rights to develop, maintain and enjoy
private and public property to the fullest possible extent.
Protected Specimen and heritage trees are considered a valuable asset to the
community. The protection of such trees in all zoning districts including
residential zones is intended to preserve this valuable asset. (Ord. 1573, 9 2,
1991; Ord. 1543,92,1991)
14.18.020 Definitions.
Unless otherwise stated, the following definitions pertain to this chapter.
3
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A. "City" means the City of Cupertino situated in the County of Santa Clara,
California.
B. B. "Developed residential" means any legal lot of record, zoned
single-family, duplex, agricultural residential and residential hillside, with
any structure (principal or accessory) constructed thereon.
C. "Development application" means an application for land aiteration or
development, including but not limited to subdivision of property,
rezoning, architectural and site approval, two-story residential permit,
minor residential permit, planned unit development, variance, and use
permit.
DG. "Heritage tree" means any tree or grove of trees which, because of
factors including, but not limited to, its historic value, unique quality, girth, height
or species, has been found by the Planning Commission /\rchitectur~1 ~nd Site
^pproval Committee to have a special significance to the community.
D. "Oak troe" 3hall include all tree::; of oak gonu3, including, but not limited
to, tho Valley Oak (Quercu3 lobata) and California Live 001< (Quercu3 agrifolia).
E. "Owner" shall include the legal owner of real property within the City, and
any lessee of such owner.
F. "Person" shall include an individual, a firm, an association, a corporation,
a co-partnership, and the lessees, trustees, receivers, agents, servants and
employees of any such person.
G. "Private property" shall include all property not owned by the City or any
other public agency.
H. "Public property" includes all property owned by the City or any other
public agency.
4
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I. "Protected Specimen tree" means any class of tree specified in Section
14.18.035.any of the follO\ving:
1. /\ tree de::;cribed on the table belm.v:
MeaGurement Single Trunk Multi Trunk
From Naturol DiomcterJ Diameter!
Specie::; Grade Circumference Circumference
Native Tree::;:
Oak treee 4-W 10" (31") 20" (63")
California 4-W 10" (31 ") 20" (63")
Buckeye
Big Leaf Maple 4-W 12" (38") 25" (79")
Nonnative TreeG:
Deodar Ced~lr 4-W 12" (38") 25" (70")
Blue ^tla::; 4-W 12" (38") 25" (79")
Cedar
2. ^ tree required to be protected ac a part of a zoning, tentative map, UGe
permit, or privacy protection requirement in an R 1 zoning di:Jtrict.
J. "Tree removal" means any of the following: (1) Complete removal, such
as cutting to the ground or extraction, of a protected tree or (2) Severe pruning,
which means the removal of more than one-fourth of the functioning leaf and
stem area of a tree in any twelve-month period of a protected tree tho de::;truction
(in a tv.-elve month period) of twenty five percent or more, as determined by the
Community Development Director, of any heritage or 3pecimen troe by cutting,
retarding, girdling or applying chemical::;. (Ord. 1886, (part), 2001; Ord. 1835,
5
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(part), 1999; Ord. 1810, (part), 1999; Ord. 1715, (part), 1996; Ord. 1573,93,
1991; Ord. 1543,93,1991)
14.18.25 Actions Prohibited
A. it is unlawful to remove or kilt any protected tree; and
B. It is unlawful to remove any protected tree in any zoning district without
first obtaining a tree removal permit.
14.18.030 Retention Promoted.
Heritage and Protected specimen trees are considered an asset to the
community and the pride of ownership and retention of these species shall be
promoted. The Director of Community Development shall conduct an annual
review of the status of heritage trees and report the findings to the Planning
Commission. (Ord. 1715, (part), 1996; Ord. 1543, 94.1, 1991)
14.18.035 Protected Trees.
Except as otherwise provided in Section 14.18.140, Exemptions, the
following trees shall not be removed from private or public property, including
street trees subject to Chapter 14.12 of the Cupertino Municipal Code, without
first obtaining a tree removal permit:
A. Heritage trees in all zoning districts.
B. All trees of the following species that have a minimum single-trunk
diameter of ten inches (31-inch circumference) or minimum 20-inch multi-
trunk diameter (63-inch circumference) measured 4-1/2 feet from natural
grade:
6
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1. Oak trees
2. California Buckeye
3. Big Leaf Maple
4. Deodar Cedar
5. Blue Atlas Cedar
C. Any tree required to be planted or retained as part of an approved
development application, building permit, tree removal permit or code
enforcement action in all zoning districts.
D. Approved privacy protection planting in R-1 zoning districts.
14.18.040 Heritage tree D!lesignation.
Application for designation of a heritage tree may only be initiated by the
owner of property on which the tree is located. The applicant requesting the
heritage tree designation shall submit an application with the following:
1. Assessor's parcel number of the site;
2. Description detailing the proposed heritage tree's special aesthetic,
cultural, or historical value of significance to the community; and
3. Photographs of the tree(s).
Application for designation of a heritage tree shall be referred to the Planning
Commission for review and determination in accordance with Section 19.124 of
the Cupertino Municipal Code.
The Planning Commission, may, by resolution, designate a tree or grove of
trees as a heritage tree(s).
7
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Prior to adoption of such a resolution, not less than ten pays written notice
shall be delivered to the owner. If the owner of the property protests the
designation.!. an appeal can be initiated. (Ord. 1715, (part), 1996; Ord. 1630,
(part), 1993; Ord. 1543, 9 4.2, 1991)
14.1 8.050 Heritage Tree List.
A heritage tree list shall be created and amended by resolution. The list shall
include the r~ason for designation, tree circumference, species name, common
name, location and heritage tree number. (Ord. 1543, 9 4.3, 1991)
14.18.060 Plan of Protection.
A. The Planning Commission shall consider a plan of protection for
protected trees developed by the Community Development Department or a City-
retained certified arborist. The protection plan shall include information for
correct pruning, maintenance and fertilization methods.
B. It shall be the property owner(s) responsibility to protect the tree. -+fle
plan sholl be provided for his/her use at his/her discretion in order to obtain the
retention objection.
C. Privacy protection planting in R-1 zoning districts shall be maintained.
Landscape planting maintenance includes irrigation, fertilization and pruning as
necessary to yield a growth rate expected for a particular species. Where
privacy protection planting dies it must be replaced within thirty days with the
location, size and species described in Ordinance No. 1799 (privacy protection)
and its appendix. The affected property owner, with privacy protection planting
on his/her their O'Nn lot, is oot required to maintain the required planting and shall
be required to comply with Section 14.18.070. (Ord. 1810, (part), 1999; Ord.
1630, (part), 1993; Ord. 1543,994.4,4.5, 1991)
8
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14.18.070 Recordation.
All protected Hcritage and 3pecimen trees required to be retained as part of a
development application under Section 14.8 1.020 12 14.18.035, except for trees
on public property, shall have retention information placed on the property deed
via a conservation easement in favor of the City, private covenant, or other
method as deemed appropriate by the Director. The recordation shall be
completed by the property owner prior to final map or building permit issuance, or
at a time as designated by the Director of Community Development when not
associated with a final map or building permit issuance. at the time of u~e permit,
zoning, tentative map or initial/ne..,.' building permit b~uance. (Ord. 1573,94.6,
1991; Ord. 1543, 9 4.6, 1991)
14.18.080 Heritage Tree Identification Tag.
Heritage trees shall have on them an identification tag, purchased and placed
by the City, inscribed with the following information:
CITY OF CUPERTINO
HERITAGE TREE NO.
Please do not prune or cut
before contacting the City.
(Ord. 1543,94.7,1991)
14.18.090 ApplieatioR ta Remove.
If an application tor heritage tree removal i:J ~ubmitted, the roquoGt ~hall be
fOl)vordod to the Planning Commi33ion tor re',{ie'N and approval. It b the
applicant'3 re~pon3ibility to prO\/ide 3upporting document3 a3 reque~ted by 3taff
or the Planning Commi~3ion. (Ord. 130, (part), 1003; Ord. 1543, ~ 4.8, 1001)
9
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14.18.100 Notice List to }..eeOmpaHY }'..pplieatioH.
The applicant sholl provide 'v"v'ith the application 0 list of names of 011 persons
owning and/or occupying real property located within three hundred feet of the
property im:olved in the application. INhere 0 property is 0 multifamily d'Nelling
V'v'ith more than four units, the nome of the building manager will be supplied on
the list. Notice of thc Pbnning Corr:ii~i:::;sion hcaring '.t.'in bc r,-;ailed to the ~i;J.~,le:::;
on the list. (Ord. 1630, (port), 1003; Ord. 1543, ~4.0, 1001)
14.18.110 Appeal.
An appeal of the Planning Commission's deeision may be submitted to the
City Council, in core of the City Clerk \Nithin five 't.'orking days of the decision. No
tree sholl be removed until the appeal proeess has been concluded. (Ord. 1630,
(port), 1003; Ord. 1573, ~ 4.10,1001; Ord. 1543, ~4.10, 1001)
14.18.120 Permit Requ.ired for ReHl0yal.
Except os provided in Section 14.18.140, no person sholl directly or indirectly
remove or couse to be removed any specimen or heritage tree os herein defined,
'Nithin the City limits, 'Nithout first obtaining 0 permit to do so in accordance vv'ith
the procedures set forth in this chapter. (Ord. 1543, ~ 5.1, 1001)
14.18.130 Enforcing Authority.
The Director of Community Development, or his/her authorized
representative, shall be charged with the enforeement of this chapter. (Ord.
1543, 9 6.1, 1991)
14.18.140 Exemptions.
The following situations do not require a tree removal permit prior to
removal:This chapter does not apply to the follmving:
10
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A. Removal of a protected tree in case of emergency caused by the
hazardous or dangerous condition of a tree, requiring immediate action for the
safety of life or property (e.g., a tree about to topple onto a principle dwelling due
to heavy wind velocities, a tree deemed unsafe, or a tree having the potential to
damage existing or proposed essential structures), upon order of the Director of
Community Development, orany member of the sheriff or fire department.
However,-A-~ subsequent application for tree removal must be filed within five
working days as described in Sections 14.18.150--14.18.170 of this chapter. The
Director of Community Development will approve the retroactive tree removal
permit application and may require tree replacements in conjunction with the
approval. No application fee or other approval process shall be required in this
situation.
~&---Dead trees, in the opinion of the Director of Community Development.
However, a subsequent application for a tree removal must be filed within five
working days as described in Section 14.18.150 - 14.18.170 of this chapter.
The Director of Community Development will approve the retroactive tree
removal permit application and may require tree replacements in conjunction
with the approval. No application fee or other approval process shall be
required in this situation. Removal of all deciduouo, fruit bearing trooo.
C. Thinning out/removing of trees in accordance with a recorded tree
management plan.
C. /\n appro'Jal for the removal of any tree granted by virtue of a zoning,
uoe permit, variance, tentative map, or Planning Commi::mion application
approval.
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D. Removal of any tree in a developed recidential 3ingle family, re3idential
duplex, agricultural residential and residential hillside zoning dictrict, cxcept
heritage, specimen or trcC3 planted to comply v.iith pri'v'acy protection pursuant
to Chapter 10.28 (Single Family Re3idential (R 1) Zones) except thoce planted
on the affected property O'Nners lot.
E. Public utility actions, under the jurisdiction of the Public Utilities
Commission of the State of California; as may be necessary to comply with their
safety regulations, or to maintain the safe operation of their facilities. (Ord. 1835,
(part), 1999; Ord. 1715, (part), 1996; Ord. 1630, (part), 1993; Ord. 1543,97.1,
1991 )
14.18.145 Tree Management Plan
I n conjunction with the approval of a landscape plan on the subject
property, the property owner may record a tree management plan on the subject
property that will outline criteria for the removal of certain trees in the future by
laying out the eventual growth of trees on the property and specifying a time
frame in which the trees may require removal to prevent overcrowding of trees on
the property.
The tree management plan shall be reviewed and approved by the
approval authority approving the landscape plan prior to recordation of the tree
management plan.
Trees that are listed to be removed in the tree management plan may be
removed within the specified time frame per the tree management plan without a
tree removal permit.
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14.18.150 Application and Approval Authority for Tree Removal Permit.
A. A No person shall directly or indirectly remove or cause to be
removed any protected tree without first obtaining a tree removal permit,
unless such tree removal is exempt per Section 14.18.140. Applications
for a tree removal permit npecimen or heritage tree removal permitn shall
be filed with the Department of Community Development on forms
prescribed by the Director of Community Development and shall state
the number and location of the trees to be removed, and the reason for
removal of each.
B. B. Applications for protected heritoge tree removal shall be referred
to the Planning Commission for final review and determination opproval
in accordance with Section:; 14.18.000, 14.18.100 and 14.18.110
Section 14.18.220 and Chapter 19.124:-. The Planning Commission may
approve, conditionally approve, or deny the application for a tree removal
permit. A tree replacement requirement may be required in conjunction
with the tree removal permit. The applicable tree removal permit fee shall
apply. Reque:;t:; shall be reviewed pursuant to Section 14.18.110.
C. When a development application is under consideration by the approval
authority concerning the same property as the affected tree removal
permit application, the determination on the tree removal permit shall be
made concurrently by the approval authority.-(Ord. 1630, (part), 1993;
Ord. 1573, 98.1 ,(part), 1991; Ord. 1543, 98.1 (part), 1991)
14.18.160 Director to Inspect.
Upon receipt of an application for removal of a protected specimen tree, the
Director of Community Development or his/her authorized representative will,
within fourteen days, inspect the premises and evaluate the request pursuant to
Section 14.18.180 of this chapter. Priority of inspection shall be given to those
requests based on hazard or danger of disease. The Director of Community
Development may refer any such application to another department or to the
13
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Planning Commission or an appropriate committee of the City for a report and
recommendation. Where appropriate, the Director of Community Development
may also require the applicant, at his own expense, to furnish a report from a
staff-approved arborist, certified by the International Society of Arboriculture.
^pplications f-or tree removal may be granted, denied, or granted \',dth conditions.
The Director of Community Development may, as a condition of granting a pe-Fmtt
for removal of a specimen tree, require the applicant to replant or replace a tree
\.vith more than one troe when justified to replace lo::;t tree canopy. (Ord.
1573, 98.1 (part), 1991; Ord. 1543, 9 8.1 (part), 1991)
14.18.170 Reyiew ef Application Requirements.
A request for removal of any heritage or protected specimen tree shall include
-the following:
A. Application information. Application for a tree removal permit
shall be available from and filed with the Community
Development Department and shall contain the following
information, unless waived by the Director of Community
Development:
1. A written explanation of why the tree(s) should be removed;
2. Photograph(s) of the tree(s);
3. An arborist report from a staff-approved arborist, certified by the
International Society of Arboriculture, when required by the
Director of Community Development;
4. Signature of the property owner and homeowner's association
(when applicable) with proof of a vote of the homeowner's
association.
5. Replanting plan
6. Other information deemed necessary by the Director of
Community Development to evaluate the tree removal request;
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7. Permit fee, where applicable;
8. Tree survey plan indicating the number, location(s), variety and
size (measured four and a half feet above grade) of tree(s) to be
removed.
protcctcd by a condition of approval a:;:;ociatcd ',,'vith a zoning,
tentativc map, use permit, variance ;::tnd architectural and sitc
approval application may be approved by the Dircctor of
Community Dcvclopment if deemed unsafc or dbcased or can
causc potential damagc to exbting or proposed es:;ential
structures. The Director of Community Development may abo
rcquire the applicant, at his own expcnsc, to furni:;h a rcport from a
staff approved arborbt, certified by the Intcrnational Society of
Aboriculturc. If removal is requcsted for any other rea:;on, the
application chall be referred to the Planning Commbsion '....hich
originatcd thc condition. Noticc of any public hearing undcr thb
chaptcr shall be given in the :;amc manncr as providcd in Chaptcr
10.116 ofthis code. (Ord. 1835, (part), 1000; Ord. 1715, (part),
1006; amcndcd during 12/03 supplcmcnt; Ord. 1630, (part), 1003;
Ord. 1543, ~8.1 (part), 1001)
14.18.175 Notice and Posting
Notice of any public hearing under this chapter shall be given in the same
manner as provided in Chapter 19.124 of the Cupertino Municipal Code.
However, notice of such hearing shall be mailed to each owner of record of real
property within five hundred feet of the exterior boundary of the property for
which the application is sought.
14.18.180 Review and Determination of Application Standard:J.
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~ - The approval authority shall approve a tree removal permit only after
making at least one of the following findings:Each rcquent for trec removal shall
be cvaluatcd based upon the standard::; listed undcr ::;ub::;ection::; A and B below.
^pproval of a permit to remove a spccimen or heritage tree may be granted if
onc or both of thc standardG in met.
1. A:-- That the tree or trees are irreversibly diseased, are in
danger of falling, can cause potential damage to existing or proposed essential
structures, or interferes with private on-site utility services and cannot be
controlled or remedied through reasonable relocation or modification of the
structure or utility services;
2. B. That the location of the trees restricts the economic
enjoyment of the property by severely limiting the use of property in a manner not
typically experienced by owners of similarly zoned and situated property, and the
applicant has demonstrated to the satisfaction of the approval authority that there
are no reasonable alternatives to preserve the tree(s).
3. That the protected tree(s) are a detriment to the subject property
and cannot be adequately supported according to good urban forestry practices
due to the overplanting or overcrowding of trees on the subject property.
4. That the protected tree, if located in the rear yard of a single-
family residential property, does not provide privacy protection or significant
visual value to the property and surrounding neighborhood and restricts the
economic enjoyment of the property by severely limiting the use of the rear yard
in a manner not typically experienced by owners of similarly zoned and situated
property.
B. The approval authority may refer the application to another
department or commission for a report and recommendation.
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C. The approval authority shall either approve, conditionally
approve or deny the application.
D. The approval authority may require a tree replacement
requirement in conjunction with a tree removal permit. (Ord.
1573,99.1,1991; Ord. 1543,99.1,1991)
Section 14.18. 'I 85 Tree Replacement
A. The approval authority may impose the following replacement
standards for approval of each tree to be removed in conjunction with an
approved tree removal permit, unless deemed unnecessary by the
approval authority:
1. Replacement trees, of a species and size as designated by the
approval authority and consistent with the replacement value of
each tree to be removed using the most recent edition of the
Guide for Plant Appraisal, published by the Council of Tree and
Landscape Appraisers, shall be planted on the subject property
on which the tree(s) are to be removed in the location(s) as
designated by the approval authority. Table A may be used as a
basis for this requirement. The person requesting the tree
removal permit shall pay the cost of purchasing and planting the
replacement trees.
a. If a tree cannot be reasonably planted on the subject
property, the value of the removed tree(s) shall be paid to
the City's tree fund (will we be establishing this???) to:
i. Add or replace trees on public property in the
vicinity of the subject property; or
ii. Add trees or landscaping on other City property.
Replacement value of a tree shall be determined
17
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using the most recent edition of the Guide for
Plant Appraisal, as prepared by the City Arborist.
Table A - Replacement Tree Standard
Trunk Size of Number of Minimum Size of
Removed Tree Rep!acement T~-ees Replacement Tree
(Measured 4 ~ feet
above grade)
12 to 24 inches (or 38- 1 24-inch box
-
75 inch circumference)
Greater than 24 inches 1 36-inch box
Heritage Tree 1 48-inch box
14.18.190 Protection During Construction.
Protected Specimen, heritage trees and other trees/plantings required to be
retained by virtue of a development application, building permit, or tree removal
permit zoning, subdi,,{ision, UGe permit, "/arianco, or Architoctural and Site
,^.ppro'lal Committee application approval, and all tree:::; protccted by thb chapter
shall be protected during demolition, grading and construction operations. The
applicant shall guarantee the protection of the existing tree(s) on the site through
a financial instrument acceptable to the Director of Planning and Development.
(Ord. 1543, S 10.1,1991)
14~18.200 Protection Plan Before Permit Grant~d.
A. A plan to protect trees described in Section 14.18.190 shall be submitted
to the Director of Public Works and to the Director of Community Development
prior to issuance of a demolition, grading or building permit. The plan shall be
prepared and signed by a licensed landscape architect or arborist certified by the
18
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International Society of Arboriculture and shall be approved by the Director of
Community Development. The Director of Community Development shall
evaluate the tree protection plan based upon the tree protection standards
contained in Appendix A at the end of this chapter.
B. The Director of Community Development may waive the requirement for
a tree protection plan both where the construction activity is determined to be
minor in nature (minor building or site modification in any zone) and where the
proposed activity will not significantly modify the ground area within the drip line
or the area immediately surrounding the drip line of the tree. The Director of
Community Development shall determine whether the construction activity is
minor in nature and whether the activity will significantly modify the ground area
around the tree drip line. (Ord. 1543, 9 10.2, 1991)
14.18.210 Applicant to Cuarantee Protection.
The applicant :Jhall guarantee the protection of the exi:Jting tree(:J) on the :Jite
through a financial in:Jtrument acceptable to the Director of Planning and
Development. (Ord. 1543, ~ 10.3,1001)
14.18.220 Notice of Action on Permit-Appeal.
A. Notice of the decision on an application for a protected ::;pecimen tree
removal permit by the Planning Commission Director of Community De\/elopment
or hi::; de:Jignated ropro:Jentati'le, shall be mailed to the applicant.
B. Any decision made by the Planning Commission Director of Planning
and De'Jclopment may be appealed to the City Council in accordance with
Chapter 19.136. Such decision may be appealed to the City Council by filing a
written notice of appeal with the City Clerk within ten working days after the
mailing of such notice.
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D. C. The City Clerk shall notify the applicant of the date, time and
place for hearing the appeal. The City Council may affirm, reverse, or
modify the decision of the Planning Commission Dircctor of Community
Dcvclopmcnt, and its decision shall be final. (Ord. 1573, 9 11.1, 1991;
Ord. 1543,911.1,1991)
14.18.230 Penalty.
Violation of this chapter is deemed a misdemeanor unless otherwise
specified. Any person or property owners, or his agent or representative who
engages in tree cutting or removal without a valid tree removal permit is guilty of
a misdemeanor as outlined in Chapter 1.12 of this code and/or may be required
to comply with Sections 14.18.150, 14.18.170. Notwithstanding any other
provisions of this section, the unauthorized removal of a tree planted solely for
privacy protection purposes pursuant to Section 14.18.060 C shall constitute an
infraction. (Ord. 1810, (part), 1999; Ord. 1731, (part), 1996; Ord. 1543,912.1,
1991 )
APPENDIX A
STANDARDS FOR THE PROTECTION OF TREES DURING GRADING AND
CONSTRUCTION
OPERATIONS
The purpose of this appendix is to outline standards pertaining to the
protection of trees described in Section 14.18.200 of Chapter 14.18. The
standards are broad. A licensed landscape architect or International Society of
Arboriculture certified arborist shall be retained to certify the applicability of the
standards and develop additional standards as necessary to ensure the property
care, maintenance, and survival of trees designated for protection.
Standards
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1. A plot plan shall be prepared describing the relationship of proposed
grading and utility trenching to the trees designated for preservation.
Construction and grading should not significantly raise or lower the ground level
beneath tree drip lines. If the ground level is proposed for modification beneath
the drip line, the architect/arborist shall address and mitigate the impact to the
tree(s).
2. All trees to be preserved on the property and all trees adjacent to the
property shall be protected against damage during construction operations by
constructing a four-foot-high fence around the drip line, and armor as needed.
The extent of fencing and armoring shall be determined by the landscape
architect. The tree protection shall be placed before any excavation or grading is
begun and shall be maintained in repair for the duration of the construction work.
3. No construction operations shall be carried on within the drip line area of
any tree designated to be saved except as is authorized by the Director of
Planning and Development.
4. If trenching is required to penetrate the protection barrier for the tree, the
section of trench in the drip line shall be hand dug so as to preclude the cutting of
roots. Prior to initiating any trenching within the barrier approval by staff with
consultation of an arborist shall be completed.
5. Trees which require any degree of fill around the natural grade shall be
guarded by recognized standards of tree protection and design of tree wells.
6. The area under the drip line of the tree shall be kept clean. No construction
materials nor chemical solvents shall be stored or dumped under a tree.
7. Fires for any reason shall not be made within fifty feet of any tree selected
to remain and shall be limited in size and kept under constant surveillance.
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8. The general contractor shall use a tree service licensee, as defined by
California Business and Professional Code, to prune and cut off the branches
that must be removed during the grading or construction. No branches or roots
shall be cut unless at first reviewed by the landscape architect/arborist with
approval of staff.
~ 9:--Any damage to existing tree crowns or root systems shall be repaired
immediately.by an approved tree surgeon.
10. No storage of construction materials or parking shall be permitted within the
drip line area of any tree designated to be saved.
pj?!;;.!.?!.m~D
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only. These documents should not be relied upon as the definitive authority for local legislation. Additionally. the
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For further information regarding the official version of any of this Code of Ordinances or other documents posted on this
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techsupportaiiamleaal.com
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22
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Cupertino Planning Commission Minutes of December 12, 2006
Exhibit C
Page 26
Motion:
Upon motion of Commissioner Wong, seconded by Commissioner
Saadati, the Planning Commission proposed the approval of a Use.
Permit (U-2006-11) to allow a full bar at a proposed restaurant at
Marketplace Shopping Center; an Architectural and Site Approval (ASA-
2006-23) to allow minor exterior changes to provide outdoor seating;
and a Sign Exception (EXC-2006-11) to allow a sign (statue) to exceed
the number and height of allowed signs for a proposed restaurant at
Marketplace Shopping Center located at 19628 Stevens Creek
Boulevard, with the following requirements:
. That the applicant work with staff regarding the patio furniture
materials (either wood or heavy metal);
. That the 14-foot Merlion and the base of the fountain shall be
worked out with staff, perhaps using color concrete, stucco or tile
on the fountain seat wall;
. Give the applicant the option to install odor abatement equipment;
and
. Add the issue of the planting of the palm trees to Section 3 and 4 so
that it is conditioned that the palm trees will be placed by June 30,
2007, and with the requirement that a bond shall be placed in the
amount of $5,000 for the required palm trees but not to have the
installation of these trees be tied to the Merlion Restaurant.
Director Steve Piasecki explained that the bond should be equivalent to the cost of
installation of the palm trees and that $5,000 would not cover that cost.
Commissioner Chien reminded that Elephant Bar had stated that it was cheaper to install
the odor abatement equipment up front rather than later and wondered what this applicant
thinks about that.
Mr. Wu Chang said that while the unit installed at Elephant Bar costs about $50,000, they
have already installed a more expensive and better unit that costs about $100,000.
Motion:
The vote on the motion above, with the amendment to make the bond
amount for the planting of the palm trees be the estimated cost of
installing the palm trees on site, was 5-0.
Chair Miller advised that this action is final, unless appealed.
PUBLIC HEARING - ITEM NO.4
***
Application No.(s): MCA-2006-02
Application: City of Cupertino
Location: Citywide
Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees).
Continued from the October 24, 2006, Planning Commission meeting.
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Cupertino Planning Commission Minutes of December 12, 2006
Page 27
Tentative City Council date: Unscheduled
ACTION TO BE TAKEN:
Approve or deny MCA-2006-02
Senior Planner Aki Snelling presented the staff report as follows:
. Reminded that this is a continuation of the Municipal Code Amendments to Chapter
14.18 (Heritage and Specimen Trees).
. Said that this was last discussed at the meeting of October 24, 2006, when the
Planning Commission asked staff to conduct additional research, to clarify language
and to provide a draft model Ordinance for review.
. Listed a number of discussion items raised at the last hearing, including:
o Are street trees exempt? Reported that staff checked with the Public Works
Department. PW advised that all City trees, including street trees, are subject to the
Tree Ordinance. Added that PW created a memo that discusses their process for
tree removal. Any protected trees would go through the Planning Commission for
consideration and approval of removal. A reference to this information was added
to the model Ordinance.
o Sample Deed Restriction: A sample deed restriction was provided in the staff report
as Exhibit C.
o Heritage Trees Designation Process and Process for Tagging Heritage Trees: Staff
has clarified the application process in Ordinance 14.18.040. This includes the
application, the submittal requirements and the fact that this requires Planning
Commission review and determination. This process for tree designation is to be
initiated by the property owner. She added that there is an existing section
(14.18.080) that provides the requirements for tagging trees. She reminded thatthe
Planning Commission was asking for additional information regarding how to place
the tags on trees and how they are to be maintained. She advised that this is best
handled as a separate policy and procedure rather than being included in the
Ordinance.
o Noticing: The Planning Commission asked staff to expand noticing to 500 feet.
This change to the noticing section has been made.
o Tree Size: Tree size is measured by the standard trunk diameter at breast height
(DBH) as modified in Section 14.18.035B.
o Tree Replacement Table: Said that a tree replacement table is under development.
She provided a copy of Campbell's list as an example (4-26) although this is not
necessarily what is recommended for Cupertino. She informed that Los Gatos
bases its replacement on the canopy of the removed tree. The City arborist says
that it is difficult to use canopy size and difficult for a layperson to do so. She
recommended that Cupertino use trunk size to determine tree replacement. She
said that this is creating a new standard here as most cities use valuation or a case-
by-case process.
o Emergency, Hazardous and Dead Tree Removal: The Planning Commission asked
that retroactive tree removal permits be reinstated in the language and staff has
done so. These requests must be made within five days of removal of such a tree.
Currently, there is no fee charged for retroactive tree removal and no further action
other than Director approving.
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Cupertino Planning Commission Minutes of December 12, 2006
Page 28
Commissioner Giefer asked why not recover the cost for emergency tree replacement?
Director Steve Piasecki explained that it is in the public's interest to remove trees if
hazardous and/or dangerous or there might be a dangerous situation if delays occur. He
stressed the importance of having as simple and straightforward a Tree Ordinance
possible that still get the replacement tree installed.
Chair Miller asked Director Steve Piasecki what is the standard in determining a dead
and/or dangerous tree.
Director Steve Piasecki replied that if a tree is dead, there is a presumed danger of falling
limbs. He added that there is the semantics of whether a dead tree is a tree or just a
bunch of lumber. He reiterated that it is in the public's best interest to facilitate the removal
of dead trees without delay.
Planner Aki Snelling:
. Reminded that the Planning Commission asked staff to walk them through the removal
process (4-33 of the report).
. Explained that staff adding a finding to allow for rear yard removals if the tree offers no
significant visual value or privacy protection.
. Trees on common property line. Who is responsible? Reported that the City Attorney
says this is a civil matter between property owners unless it was a recorded tree.
. Said that when applications are applied for, all owners involved apply.
. Added that the prohibition of parking and/or storage within a protected tree's drip line
has been added.
. Advised that the Planning Commission asked for a breakdown in fees, to reduce the
fee for legal tree removals and single tree removals.
. Reported that the fee is currently based on 2004 values that were adopted by Council.
. Informed that staff is supportive of lowering fees to be consistent with fees of
surrounding cities. The lower fee is proposed at $150 for the first tree and $75 for each
additional tree. This is similar to Los Gatos' fee.
Commissioner Wong asked what is wrong with coming to the Planning Commission or
DRC?
Planner Aki Snelling said that these fees are just the application fees. It does not include
the arborist-consulting fee (typically a $1,000 deposit) and/or mailing fees.
Director Steve Piasecki said that this would cover the process but would not cover the cost
to the City. These removal permits are more realistically handled at staff level at the
counter.
Planner Aki Snelling:
. Reminded that the Commission also asked for educational awareness and staff plans
to create a pamphlet to hand out to the public.
. Added that the Commission asked for consideration of impacts of tree canopies on
solar panel placements. At their August 15,.2006, meeting, Council gave direction to
not make any amendments to address this issue so staff has not.
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Cupertino Planning Commission Minutes of December 12, 2006
Page 29
. Said that the Commission also wanted to understand the process to add trees to the
protected tree list. However, staff is recommending that no additional trees, including
the California Pepper, be added to the specimen tree list, as it is a non-native and
invasive tree.
Director Steve Piasecki:
. Explained that the reason this Ordinance is up for discussion right now is that the City
is not very successful in enforcing it as it exists.
. Said that he has no problem taking non-native trees off the list versus adding native
trees on the list.
. Reiterated that he does not want to make this updated Ordinance more complicated
when the City does not have a good track record managing it as it is.
Planner Aki Snelling:
. Reported that no examples of a tree management plan were found.
. Advised that she surveyed other cities regarding penalties.
. Informed that the City arborist is present this evening to answer questions.
. Added that a Code Enforcement Officer is here tonight to give information regarding
illegal tree removals.
. Said that the model Ordinance with changes was distributed.
. Stated that an alternative option is proposed by staff for the Commission's
consideration. That would be a more prescription process using a detailed table. This
would simplify the Ordinance and make it easy for the public to understand.
. Described the alternative option to include the Director reviewing and determining tree
removal permit applications except for heritage trees.
. Reminded that Council wanted some tree removals to go to staff level except for
retroactive tree removal permits.
. Detailed the alternative options that include a City tree fund that is collected in lieu of
tree replacement on site. Instead of having penalties, an applicant for a retroactive tree
removal permit would have to pay an administrative fee for staff time to review the
req u est.
Chair Miller asked what this fee would be.
Planner Aki Snelling:
. Replied that the fee has not yet been determined.
. Provided the rational for an alternative option as including: it follows Council's direction
for tree removal permits to be reviewed/determined at staff level (except retroactive
permits); it reduces processing time; it reduces the cost to the City (staff time and
resources and Planning Commission meetings) and an administrative fee for
retroactive tree removal permits would be high enough to conduct field surveys and
document the tree removal.
. Recommended that the Planning Commission discuss and provide amendments to this
evening's material and said that the City Attorney is here.
Chair Miller asked for a report from Code Enforcement.
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Cupertino Planning Commission Minutes of December 12, 2006
Page 30
Mr. Gary Kornahrens, Code Enforcement Officer, said he researched information going
back to 2003. He said the number of calls for service dealing complaints about tree
removals has gone up in 2006. He said that only about 25 percent of those calls on trees
are actually violations. He said that this has not changed since the recovery fees were
established.
Ms. Eileen Murray, Deputy City Attorney:
. Advised that she contacted Los Gatos' City Attorney.
. Explained that there is an established civil penalty but one has to go to court and sue
for a nuisance, claiming cost of replacement as damages.
. Said that in Los Gatos there is a penalty of $1,000. They use an Administrative
Process with a hearing officer that functions like a court.
. Added that the need for an Administrative Process has come up in other areas such as
dogs and garbage.
. Suggested that the City of Cupertino might consider setting up an Administrative
Process for administrative citations. This would be helpful.
Chair Miller opened the Public Hearing for Agenda Item NO.4.
Ms. Jennifer Griffin:
. Stated that she was very pleased to see the 105-page document. There were a lot of
interesting guidelines put in to protect trees including those trees on construction sites.
. Recounted that she has seen horrible damage done to trees on construction sites.
. Mentioned that a contractor cut one street tree's roots and that tree fell over near her
home.
. Suggested that the Commission do everything possible to protect trees in Cupertino.
. Pointed out that the whole theme tonight is trees and how to protect them.
. Added that doing so reaps benefits for decades to come.
Mr. Adam Montgomery:
. Thanked staff and the Commission for answering his questions.
. Said that it is the right direction to simplify the Ordinance.
. Said that he sent in a letter today.
Ms. Kathy Stenkey:
. Opined that too many protected trees can make an Ordinance cumbersome.
. Discouraged adding the Pepper tree to the protected list as this is a messy tree that
has been banned from several counties and she suggested that the City look at the
Pepper tree cautiously before putting it on a protected tree list.
. Stated that Redwoods are often over planted.
. Suggested that a Task Force be formed to identify trees to protect.
. Assured that there are a lot of tree lovers, herself included, who would be happy to
serve on such a Task Force. .
Ms. Deborah Jamison:
. Described herself as a 22-year resident living in a 36-year old neighborhood.
. Lamented that larger trees have been removed and replaced with small saplings.
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Cupertino Planning Commission Minutes of December 12, 2006
Page 31
. Said she wanted to introduce a concept of putting the issue of wildlife habitat as an
additional value of trees and supported a better human connection with nature and
wildlife, She reminded that other species share City space.
. Stressed that the value of trees is to help preserve the natural heritage.
. Said that most people don't know that most trees are not native.
. Suggested adding trees such as Bay Laurel, Western Sycamore and all of the native
Oaks as part of the natural heritage.
Mr. James Welsh, Commercial Tree Care:
. Said that the City is doing a good job with this and that he is glad to see more
participation in the process. It gives a good feeling.
. Said that 500 foot mailing raises the cost and suggested that 300 feet is adequate.
. Stated that allowing only five days to replant on a retroactive tree removal permit is too
short a time. He suggested that 30 days would be better.
. Suggested considering the weight when determining the size of a tree. He explained
that a 15-gallon tree weighs 20 pounds. A 24-inch box tree weighs 240 pounds. A 36-
inch box tree weighs between 400 and 600 pounds. That is a lot of weight to get into a
backyard and results in a lot of expense, including a crane to get these larger trees into
a backyard.
. Asked that Code Enforcement keep an eye on tree toppings. This results in a horrible
slow death to a tree.
. Added that he would like to see big fines imposed for any violations.
. Stated that the Planning Commission does a good job.
Chair Miller pointed out that PG&E regularly tops trees that interferes with wires and asked
if there is any way around that.
Mr. James Welsh said that education is the big thing. People should not be planting trees
that will grow to interfere with wires. That is a major fire hazard so PG&E has to top those
trees. They do a chop job that creates sucker growth in the tree.
Commissioner Wong asked Mr. James Welsh if he is a resident of Cupertino and/or does
he do a lot of work in Cupertino? He said it is nice to have him here this evening. He
asked for feedback on working in Cupertino.
Mr. James Welsh:
. Stated that City staff has always been very cooperative.
. Recounted that on occasion he would tell a client the cost for processing tree removal
and that client would say to forget it. A few weeks later he would pass by that client's
property and the tree would be down.
. Advised that while a big company wouldn't do it without permits the small guy with a
pickup and no insurance will do it without permits.
. Suggested that fees need to be low enough where people can afford it and they will
come in and get the requirements for removals.
Commissioner Wong asked Mr. James Welsh if when he takes down a protected tree in
Cupertino does the property owner get the permit or does he.
d- .-s &
Cupertino Planning Commission Minutes of December 12, 2006
Page 32
Mr. James Welsh said that he usually does it. Most of the times property owners don't
want to deal with it. His company provides the licensed arborist and takes the report and
pictures.
Commissioner Wong asked Mr. James Welsh if he could name the five protected tree
species off the top of his head.
Mr. James Welsh mentioned Oaks and Redwoods.
Commissioner Wong said that the City needs to educate the public and tree services on
the protected trees. He admitted that he couldn't even remember himself without looking
at the list.
Director Steve Piasecki pointed out that Mr. James Welsh checks with the jurisdiction each
time as it is not just those five species that must be taken into consideration but also
landscape plans and street trees.
Mr. James Welsh:
. Informed that he is licensed in 22 different cities and gets the paperwork for each city.
. Said that he does not know what remedy is available for company's that remove trees
without a permit but perhaps going after their contractor's license is one option.
. Said that some company's make clients get permits themselves. He added that some
cities are difficult and some make it simple.
Chair Miller closed the Public Hearing for Agenda Item NO.4.
Commissioner Chien said that he wants to understand the process as it is today before
changing it. If an applicant comes in to apply for tree removal is that request approved by
the Community Development Director or the Planning Commission?
Planner Aki Snelling said that if it is a protected tree that request goes to the Planning
Commission unless it is an exempt situation such as a hazardous condition.
Commissioner Chien asked why there has been no application that has not been a
retroactive tree removal request during his time on the Commission?
Planner Aki Snelling said she couldn't answer that question.
Director Steve Piasecki said that people are not aware that the trees they remove. are
protected. When a complaint is called in about an improper removal, staff calls the owner.
He added that staff is interested in keeping the Ordinance simple, prescriptive and
inexpensive to ensure compliance. It is in the public interest to simplify the process.
Commissioner Chien said it appears staff is proposing a more daily management role for
staff.
Director Steve Piasecki:
. Said staff is evaluating an administrative fee for tree removal applications.
02-51
Cupertino Planning Commission Minutes of December 12, 2006
Page 33
. Added that all heritage trees should come to the Planning Commission.
. Reminded that there are not many but just one page of designated heritage trees.
. Suggested simplifying process with prescriptive replacement.
. Stated the concept of reasonable property rights as something that people expect is
legit and should be respected.
. Agreed that the current process is not working very well.
Commissioner Chien said that the administrative fee would have to be substantial for
retroactive permits.
Director Steve Piasecki said that would have to be assessed. He said that perhaps it does
not have to be substantial but enough to cover the City's cost, which would be substantial
enough as a disincentive at perhaps several hundred dollars.
Commissioner Chien said it is important to differentiate between those who follow the law
and get permits in advance versus the person who comes in after the fact. The penalty
needs to be sufficient to discourage retroactive permits.
Director Steve Piasecki:
. Stated that if there is a penalty process there also has to be a due process. That adds
a layer of bureaucracy to this process. The City has to create the law and the due
process.
. Reminded that some people will simply not know the requirements.
. Reiterated the need to develop a process that is reasonable and inexpensive.
. Added that it would take approximately $500 to recover cost.
. Said that the administrative fee would be used to do an after-the-fact evaluation of an
already-removed tree.
Commissioner Chien asked Director Steve Piasecki to comment on the City Attorney's
recommendation.
Director Steve Piasecki said that it is a fairly bureaucratic and costly process for the City to
administer.
Commissioner Chien said that he does not think that a few hundred dollars is enough to
deter people from removing trees prior to getting a permit and said that he wants to focus
on the City Attorney's recommendation.
Deputy City Attorney Eileen Murray said that she has looked into an Administrative
Hearing Process and finds it could be a helpful alternative. She reminded that there are
still civil and criminal enforcement options available.
Director Steve Piasecki said that the cost has to be considered. It could cost someone
several thousand dollars. He said he is concerned about having extraordinary costs in that
administrative recovery can get into the thousands. An arborist already costs
approximately $1 ,000.
Commissioner Chien asked which species of tree are protected.
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Cupertino Planning Commission Minutes of December 12, 2006
Page 34
Mr. Barrie Coate, City Arborist:
. Said that most cities protect native trees including the native Oak.
. Added that there is no simple answer as protected trees are different for every city.
. Said that there are several factors to consider including whether the tree is native and if
it is an important skyline tree such as Cedar.
Commissioner Chien asked if the Redwood tree is native.
Mr. Barrie Coate said that the Redwood was native but has not been for many years
because many were cut down. Originally, yes, and the Redwood should be included.
Commissioner Chien:
. Thanked the Chamber of Commerce and the Silicon Valley Realtors for their comments
on this issue.
. Said that he thinks the City is going in the right direction.
. Expressed appreciation that Director Steve Piasecki recognizes that the Ordinance
does not work as it is right now.
. Said he looks forward to hashing it out.
Chair Miller asked Commissioner Chien if there are any specific recommendations that he
agrees or disagrees with.
Commissioner Chien:
. Stated that he does not think that an administrative fee of a couple of hundred dollars
will deter residents from removing trees without a permit.
. Recommended a higher administrative fee or an Administrative Hearing Process.
. Said he is torn about the tree list and is not sure which species should be included.
. Added that Director Steve Piasecki has made a good recommendation to wait before
adding additional trees to the protected list.
. Said that he is not sure that using the size of the tree should be uniform but rather the
evaluation needs to be more sophisticated.
Commissioner Saadati asked why, if it is not native, does the California pepper tree have
its name.
Mr. Barrie Coate said that this is the common name. In South Africa, it is called the African
Pepper. In Australia, it is called the Australian Pepper. This tree comes from Peru. He
added that this is the reason that horticulturalists use the botanical names, which are more
specific and accurate.
Commissioner Saadati:
. Said that he is in agreement with the administrative fee that simplifies the process.
. Agreed that more is not better in terms of the trees included on the tree list.
. Considered that a hazardous tree removal could be judgmental and this evaluation of
danger needs to be validated.
. Stated that fees mentioned at $150, $75 and $1,000 seems reasonable.
d.,54
Cupertino Planning Commission Minutes of December 12, 2006
Page 35
. Suggested that slow growing trees versus existing heights might need to be
considered.
. Said that having no more than five trees on the protected list is easier to follow.
Mr. Barrie Coate:
. Cautioned that evaluating when a tree is dead must be done carefully. It could be a
deciduous tree that has dropped its leaves.
. Said that whether a leaning tree is dangerous is something that cannot be evaluated by
a homeowner, as there are some things that only an expert can answer.
. Stated that in general staff has addressed most issues.
Commissioner Giefer asked for further information on the slight increase mentioned by
Code Enforcement on the number of tree cutting calls. She asked if that data could be
quantified.
Mr. Gary Kornahrens, Code Enforcement Officer, said that for the tree cases in 2005 there
were four open cases for removals of heritage trees and 43 classified as other. In 2006
there were 12 removals of heritage trees and 39 classified as other. He added that the
increase in reporting could perhaps be attributed to more public awareness.
Commissioner Giefer:
. Thanked everyone for staying this late.
. Asked for clarification on pepper trees, which are invasive in Southern California but
manageable in Northern California.
Mr. Barrie Coate said she is correct. In tropical climates, the Pepper tree is dangerous and
illegal to plant in places such as Hawaii.
Commissioner Giefer:
. Said that a key question is what is the right tree list? What criteria should be used to
determine what trees should be on the list?
. Added that there are lots of different opinions on that issue.
. Stated that she thinks the Pepper is an attractive tree but that native trees are the core
of the Tree Ordinance. Native trees make better use of water, are more drought
tolerant, are better suited for our climate and produce less pollen.
. Said that she does not want to protect Cedars but she does want to protect Oaks,
California Buckeye, Big Leaf Maple, Western Sycamore, Coastal Redwoods, Madrones
and Bay Laurels. Other than that, she does not really care.
. Added that she is okay with thinning Redwoods over time but wants to focus efforts on
native trees.
. Stated that staff has issues administering some of the existing tree policies.
. Said that she needs to understand how people are going to be noticed and how staff is
going to be trained to tell an Oak from a Carob tree.
. Said that she did not want to see a desk permit inadvertently allow the removal of a
heritage Oak.
. Pointed out that tags have not been placed on heritage trees yet and that has been part
of the existing policy.
02 -bo
Cupertino Planning Commission Minutes of December 12, 2006
Page 36
. Questioned what is going to change since execution of the existing policy is not
occurring. .
. Added that if the City does not want to execute a policy it should not have a policy.
. Stated that she is only willing to turn over tree review on a probationary period.
. Said that she likes the fee structure that's in place today but not the punitive portion.
She said that the high Administrative Hearing Process cost is needed to provide the
stick. If the lower cost is enacted, it is important that the public come in and takes
advantage of that low cost and not come in later and ask for forgiveness.
Director Steve Piasecki said that a fee study was done several years ago and found that
tree removal cost was in the $2,000 to $3,000 range. He suggested that for retroactive
tree removal permits, the property owner pay full price while if they come in prior to
removal they can get the discount. This would be an incentive for permits in advance.
Commissioner Giefer:
. Stated that the penalty needs to be increased.
. Said that she is not in favor of sizing trees using the standard size of diameter at breast
height. With this faster growing trees have no parity with slower growing trees.
. Suggested that if a rear yard tree is protected and removed, she does not care where
on the property that tree is located the owner needs a tree removal permit even if it is a
nuisance tree.
. Stated that there is no difference between front and back yard trees.
. Stressed the need for education awareness and that photographs of tree species with
close ups of leaf and bark should be prepared to help people identify their tree.
. Proposed a new idea. If a tree is removed that requires a replacement, waive the fee
if that tree is replaced with a native species.
. Added the word "maintaining" to the phrase "purchasing, planting and maintaininq
trees."
. Suggested adding to Appendix A the requirement for posting rules on the fence as well.
. Said that the use of architect, arborist and landscape needs to be cleaned up on the
text.
. Reiterated the need to focus on native trees.
Commissioner Wong:
. Said that there are problems in not enforcing the current Tree Ordinance.
. Stated that staff is suggesting streamlining the process and making it more prescriptive
so that fewer requests have to come before the Planning Commission.
Director Steve Piasecki said that staff wants to make it easy and reduce costs (staff level
versus Planning Commission). He added that there are about 50 cases a year that could
result in more than 40 hours of hearing time before the Planning Commission.
Commissioner Wong asked if decisions could be emailed to both Planning Commission
and Council.
Director Steve Piasecki replied yes.
:1-"
Cupertino Planning Commission Minutes of December 12, 2006
Page 37
Commissioner Wong asked how Director Steve Piasecki could ensure that staff can
identify tree species.
Director Steve Piasecki replied that those authorized to process tree removals can identify
tree species although there have been some mistakes.
Commissioner Wong asked how Code Enforcement knows that a tree is protected and/or
heritage? Do they defer to Planning?
Mr. Gary Kornahrens, Code Enforcement Officer, said that they verify potential violations,
taking photographs and come directly to the Community Development Department. He
advised that one Code Enforcement Officer got photographs off the Internet and gave
copies to all Code Enforcement staff to keep in their vehicles. He added that he is not a
tree expert by any means.
Commissioner Wong asked who is the tree expert in Planning?
Director Steve Piasecki assured the Commission that staff that review trees can identify
protected species. Itis not highly complicated.
Commissioner Wong asked about a tree fund instead of replanting. He said that defeats
the purpose and asked why staff is suggesting this. Tree replacement is important.
Director Steve Piasecki said that there might not be room on site if the site was over
planted originally. Many people over plant trees especially with Redwoods. There are
some legitimate reasons to remove trees.
Commissioner Wong clarified that the Deputy City Attorney is not advocating the use of an
Administrative Hearing Process but simply offering it as an option. Council would have to
support this concept before it is undertaken.
Deputy City Attorney Eileen Murray said that it is potentially a third vehicle. With this
process the penalty goes directly to the City and not to the Court.
Commissioner Wong said that the Director is concerned that this is a more cumbersome
process and he said that he agrees with Director Steve Piasecki that a streamlined
process is better.
Director Steve Piasecki said that if there is a gross violation a person could still be taken to
court. He stated that common administration is more effective than the formal
Administrative Hearing Process.
Commissioner Wong agreed and reminded that not everyone knows the five currently
protected tree species. He is not comfortable adding any more right now.
Commissioner Giefer asked Commissioner Wong if he would be willing to remove and
replace some of the existing trees on the list.
Commissioner Wong replied that he would not want to go beyond five.
;l-Io~
Cupertino Planning Commission Minutes of December 12, 2006
Page 38
Director Steve Piasecki said that the Ordinance is about overall public interest.
Commissioner Wong said that he agrees with staff that a 10-inch diameter trunk sizing
method is easier to implement. He said that tree replacement and penalty is not clear.
Director Steve Piasecki said that is not ironed out yet. After all Commissioners speak, he
would suggest bringing this matter back to the Commission at a future hearing as that
issue is vague right now.
Commissioner Wong said that the replacement tree standard from Campbell is easier to
understand. He asked what fees are proposed other than the $150 for one tree and $75
for each additional tree.
Planner Aki Snelling said that the arborist-consulting fee is a $1,000 deposit.
Commissioner Wong asked what fees would be charged for staff-level handing.
Planner Aki Snelling replied the same.
Director Steve Piasecki said that the fee could be low if done in advance. If retroactive,
the fees could range between $2,000 and $3,000 to represent full cost recovery.
Commissioner Wong said that Commissioner Giefer's proposal to waive the fee if native
replacements are planted is an interesting idea. He said that staff needs to bring stuff
back although he had hoped to conclude this matter this evening..
Chair Miller:
. Agreed that he too had hoped to conclude this issue tonight but so be it.
. Said that the strategy to replace removed trees with native is a good one.
. Reminded that Mr. James Welsh had suggested that the weight and cost of placing
very large trees in a backyard be considered.
. Asked if a two-tiered pricing system is necessary so that it is clear to the public that a
fee discount and pre-approval are related.
. Said that he is not clear if an additional $75 per tree is necessary if handled together.
Director Steve Piasecki said that there is extra cost to the City to process multiple trees.
Chair Miller:
. Said that one method of estimating tree replacement is requiring roughly the same
value.
. Added that another approach is replacement with a tree that serves the same purpose
as the original tree.
. Said that he likes the idea of a Tree Management Program to make it easier if a
property is over planted to later allow thinning out of trees as necessary.
. Pointed out that the City is pretty much built out already and so Tree Management
Plans might be needed retroactively to deal with existing situations.
02 --~ 3
Cupertino Planning Commission Minutes of December 12, 2006
Page 39
Director Steve Piasecki said that perhaps over planting standards needs to be defined.
Chair Miller asked if all trees in a landscape plan are recorded or only privacy protection
trees.
Planner Aki Snelling replied privacy protection trees or replacement trees for protected
trees.
Chair Miller asked for verification that entire landscape plans are not recorded.
Planner Aki Snelling replied no.
Chair Miller:
. Said that it is good that they are not.
. Stated that that if the purpose of the tree is privacy it needs to be protected but the
owner should have some flexibility.
. Added that he supports staff concern about adding to the protected list but if replacing
species on the current list is practical he could support it.
. Expressed support for creating strategies for increasing native trees.
. Pointed to Section 14.18.040 that says that a property owner initiates heritage tree
designation.
Planner Aki Snelling said that needs to be modified to read the "Planning Commission, by
resolution, can approve the tree as heritage."
Chair Miller asked if the Planning Commission could initiate designating a tree a heritage
tree?
Director Steve Piasecki said that it is up to the Planning Commission to discuss the
concept but that a process would be needed to back it up.
Chair Miller said that this is a property rights issue. He said that it is fine if an owner wants
to designate a tree as a heritage tree but not if the City imposes that designation.
Commissioner Wong supported the staff recommendation for a 10-inch diameter size.
Chair Miller said that it appears that if there is no room on site to plant replacement trees
there is no reason to charge an applicant an in lieu fee.
Director Steve Piasecki agreed.
Chair Miller said that he supports staff coming up with a prescriptive way to handle tree
removals at staff level and asked for a motion to continue this item to the first meeting in
January.
Director Steve Piasecki said that would be too soon and proposed the second meeting in
January.
J-h~
Cupertino Planning Commission Minutes of December 12, 2006
Page 40
Motion:
Upon motion of Commissioner Giefer, seconded by Commissioner
Chien, the Planning Commission CONTINUED TO A DATE CERTAIN
(JANUARY 23, 2007) a Municipal Code Amendment (MCA-2006-02) of
Chapter 14.28 (Heritage and Specimen Trees). (5-0)
Commissioner Wong suggested that the meeting start earlier if the agenda is large.
***
OLD BUSINESS
There was no old business.
NEW BUSINESS
There was no new business.
REPORT OF THE PLANNING COMMISSION
1. Environmental Review Committee: Chair Miller advised that a meeting would occur on
December 13th.
2. Housing Commission: Commissioner Wong said that a meeting would occur on
Thursday.
3. Mayor's Monthly Meeting with Commissioners: None
4. Economic Development Committee Meeting: None
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT
There was no Director's Report.
ADJOURNMENT
Chair Miller adjourned the meeting at approximately 12:10 a.m. to the next Regular
Planning Commission meeting of January 9, 2007, at 6:45 p.m.
MINUTES PREPARED AND SUBMITTED BY:
Corinne A. Shinn, Minutes Clerk
c2 -foS
Exhibit 0
CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014
DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM
Application:
Applicant:
Property Owner:
Property Location:
MCA-2006-02
City of Cupertino
Various
Citywide
Agenda Date: December 12, 2006
Summary: Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen
Trees)
RECOMMENDATION
Staff recommends that the Planning Commission discuss and provide direction on
Chapter 14.18 (Heritage and Specimen Trees) of the Cupertino Municipal Code.
BACKGROUND
On October 24th, the Planning Commission continued its discussion of possible
amendments to the City's Heritage and Specimen Trees Ordinance and provided
direction to staff to conduct additional research, clarify language in the draft model
ordinance and recommend a draft model ordinance for the Commission to consider.
DISCUSSION
The following is a list of the comments provided by the Planning Commission and
staff's responses and recommendations:
Planning Commission Comments
Street Trees
· Are street trees exempt from the tree ·
protection ordinance?
· If not, what if a street tree is also a
protected tree?
Staff ResponsefRecommendation
Staff has confirmed with the Public
Works Department that street trees are
not exempt, and are therefore, subject
to the Heritage and Specimen Trees
Ordinance. The Public Works
Department has also issued a memo
(See Exhibit B) outlining a policy to
ensure that protected trees require
Planning Department approval prior to
removal.
Chapter 14.12 (Trees) is referenced in
Section 14.18.035 (Protected Trees) of
the draft model ordinance to clarify
that street trees are included as
protected trees.
d /fo {,
MCA-2006-02 - Heritage am. .::cimen Trees, Ch. 14.18
December 12, 2006
Page 2
Recorded Trees
· Show sample of a recorded instrument ·
protecting trees
Heritage Trees
Clarify the Heritage Tree Designation c
process
Provide a mechanism for tagging trees
Noticing
· Provide a minimum 500-foot noticing ·
for tree removalermit a lications.
Protected Tree Size
Provide a uniform DBH (Diameter at ·
Breast Height) trunk diameter size to
determine protected tree status of
oaks, California buckeye, big leaf
maple, deodar cedar and blue atlas
cedar trees.
· Use DBH rather than tree canopy size
to determine tree replacement.
requirements.
A sample (See Exhibit C) of a recorded
deed restriction for privacy protection
landsca in is included.
.
Section 14.18.040 is amended by adding
"Heritage tree" to the subject heading,
and by including language to clarify
the application process for a heritage
tree designation.
Section 14.18.080 is amended by adding
"Heritage tree" to the "Identification
Tag" subject heading. The mechanism
for tagging heritage trees is already
addressed in this section.
Specific procedures on how to tag
heritage trees and maintaining tags will
be handled through a separate process
b Ci staff.
Section 14.18.175 is amended to clarify
that a 500-foot noticin is re uired.
Staff recommends using a standard 10-
inch DBH (single) trunk size and 20-
inch DBH (multi) trunk size minimum
for the specific species of protected
trees listed in Section 14.18.035(B). The
proposed change is shown in this
section.
Staff is currently working to develop a
table of tree replacement requirements
for Section 14.18.185 to simplify and
streamline the tree removal permit
procedures. A further explanation of
streamlining the tree removal permit
procedures will be explained in the
latter portion of this report. The sample
tr~e replacement standard (from City
of Campbell) that is included in the
draft model ordinance does not reflect
staff's recommendation, but is included
to stimulate discussion on this section.
d-~1
MCA-2006-02 - Heritage an<... ecimen Trees, Ch. 14.18
December 12, 2006
Page 3
Penalties
· Have the City Attorney find out how ·
other cities are handling penalties,
including those w / Administrative
Hearing processes and those usmg
infraction.
.. Emergency / Hazardous Tree Removals
. Reinstate language reqUIrmg .
emergency /hazardous tree removals
of protected trees to have a retroactive
tree removal application submitted
within 5 days of removal.
· Add language stating that
emergency/hazardous tree removals
will be done in an expeditious manner.
The City Attorney will present
information at the meeting on the
procedures other cities are using to
administer penalties, including use of
administrative hearings and
infractions.
· Staff recommends that an
administrative hearing process be
established to administer penalties
where resolutions cannot be reached at
staff level. A further explanation of
this recommendation will be provided
in the latter portion of this report.
.
Staff has reinstated language in Section
14.18.140(A) that requires a retroactive
tree removal application to be
submitted within 5 days of removal for
dead and hazardous/dangerous trees.
Clarifications have been made in the
model ordinance that tree removals in
these situations will be exempt from
tree removal permit procedures and
fees, except that the Director of
Community Development may require
replacement trees in conjunction with
the approval of these tree removals.
"Expeditious" emergency /hazardous
tree removals are already addressed in
this section by reference to removals
"requiring immediate action for safety
of life or property."
J~Io~
MCA-2006-02 - Heritage anL ecimen Trees, Ch. 14.18
December 12, 2006
Page 4
Tree Removal Permit Process
. Walk the Commission through the ·
tree removal permit process
. Provide flexibility to remove rear yard ·
trees vs front yard trees that are more
visible.
Trees on Common Property Lines
. Who has responsibility when trees are .
on common property lines?
Tree Protection Measures
. Add language in Appendix A that no ·
storage or parking IS allowed
underneath the drip line of any tree to
be retained during construction.
A flow chart explaining the current
process is provided.
A finding in Section 14.18.180(A)(4) is
added that would allow for the
removal of a protected rear yard tree if
it does not provide privacy protection
or significant visual value to the
property and surrounding
neighborhood.
The City Attorney has indicated that
the responsibility of trees on common
property lines is a civil matter between
the property owners involved, much
the same way fences on common
property lines are dealt with, unless the
tree IS a "protected" tree that IS
recorded on both properties and
specifically identifies the
responsibilities of each property owner.
. The City Attorney also explained that if
any applications were submitted for a
tree removal permit or to nominate a
heritage tree regarding a tree on a
common property line, all involved
property owners would need to sign
the application.
This IS added as Standard 10 ill
Appendix A.
d- -to q
MCA-2006-02 - Heritage all(. ecimen Trees, Ch. 14.18
December 12,2006
Page 5
Fees
. Provide a breakdown of how current ·
fees are calculated.
. Differentiate single tree removal fees
(Single-family residence) vs multiple
tree removal fees; tier system of fees
Q Lessen fees for legal tree removals
. Survey of other cities' tree removal
fees.
Education/ Awareness
. Create pamphlets to promote.
awareness of the tree ordinance
requirements.
Code Enforcement
. Have a Code Enforcement.
representative attend the Dec. 12th
meeting.
. Have Code Enforcement provide a
count of how many illegal tree
removals have occurred before and .
after the 2004 cost recovery fees.
are based upon cost-
that were adopted ill
Current fees
recovery fees
2004.
· Staff supports lessening the fees to
lessen the punitive perception of
lawfully applying for a tree removal
permit and recommends fees that
would be more in keeping with lower
fees charged by surrounding cities.
· The Commission suggested
differentiating single tree removal fees
and multiple tree removal fees by
creating a tiered system.
· Most cities have a flat fee; however, the
Town of Los Gatos differentiates fees.
· Los Gatos: $120jtree and $60jeach
additional tree with $1,500 arborist
deposit.
· Staff recommends a single tree removal
fee of $150 and $75 for each additional
tree removed with $1,000 arborist
deposit (existing).
A pamphlet will be produced once the
updated ordinance is adopted.
Code Enforcement will provide a
representative and discussion of their
findings regarding illegal tree removals
that have occurred before and after the
2004 cost recovery fees.
Code Enforcement has not found any
noticeable differences.
;2 ~10
MCA-2006-02 - Heritage am. ccimen Trees, Ch. 14.18
December 12,2006
Page 6
Solar Panels
· Consider solar panel placements ·
impacted by tree canopies.
Protected Tree List
o Add California Pepper trees to the
protected tree list
· Provide guidelines on how to add
trees to the protected list.
· Clarify the difference between trees
that were not recorded, but on an
approved landscape plan and trees
that are recorded and on an approved
landscape plan on single-family
residential lots. Are such trees still
protected if not recorded?
City Arborist/City Naturalist
· Ask City Arborist & City Naturalist to
attend the Dec. 12th meeting.
Tree Management Plan
· Are there examples of other cities with
tree management plans?
Staff recommends no changes on this
issue per the City Council's direction at
the August 15, 2006 City Council
meeting.
c Staff does not recommend adding
additional trees to the list if simplifying
the ordinance is a goal.
. Staff does not recommend adding the
California Pepper tree as it is non-
native and is considered invasive.
· Staff does not recommend providing
guidelines for adding trees to the
protected tree list because it would be
difficult to create uniform guidelines.
· The City Attorney has indicated that
the City cannot enforce protection of
non-recorded trees because there is no
way for a homeowner to know if the
tree is protected if it is not on the deed.
· The City Arborist will attend the Dec.
12th meeting.
· Staff contacted the Parks & Recreation
Department and was told that it would
not be appropriate for the City
Naturalist to attend as she is not a
certified arborist and her job duties do
not entail review of trees related to
development.
· No examples
management
identified.
· However, staff has included this
section In the ordinance as Section
14.18.145 to explain the process and
reasons for a tree management plan.
of other cities with tree
plans have been
2- ---71
MCA-2006-02 - Heritage anL . ecimen Trees, Ch. 14.18
December 12,2006
Page 7
Staff Recommendation
Model Ordinance
A revised model ordinance (See Exhibit A) is provided that incorporates the above
referenced changes as recommended by the Planning Commission at the October 24th
meeting, except where additional discussion is needed to resolve issues related to
particular sections of the ordinance (i.e., addition of trees to the protected tree list and
tree replacement requirements).
Alternative Option
Upon review of the comments provided by the Planning Commission and in the
interest of furthering the Commission's goals to clarify and simplify the tree ordinance
requirements for the public, the Planning Commission could consider an alternative
model ordinance that would simplify the tree removal permit procedures.
At the August 15th City Council meeting, the City Council commented that tree
removal permit applications could be reviewed and determined at staff level to
accommodate a more simplified process, as well as focusing on illegal/ retroactive tree
removals. In accordance with the Council's direction, staff requests that the Planning
Commission consider an approach that would permit the Director of Community
Development to approve or disapprove a tree removal permit.
This would not only reduce the processing time for a tree removal permit
determination and simplify the process for an applicant to know what would be
required of him/her as a result of a tree removal permit, but also would reduce the
costs to the City from having to expend additional staff time and resources to report
each tree removal application to the Planning Commission, since the Commission is
also interested in reducing tree removal application fees.
At this time, staff does not have a draft model ordinance of this alternative proposal,
however, the Planning Commission could consider incorporating this prescriptive
procedure that would include the following modifications:
Application and Approval Authority for Tree Removal Permit
The application and approval authority section of the ordinance would be modified to
allow the Director of Community Development to make determinations on tree
removal permit applications for protected trees, except for heritag~ trees. Applications
for removal of a heritage tree would still require approval by the Planning
Commission. This section of the model ordinance would be revised to clearly state
that applications for a tree removal permit for a non-heritage, protected tree will be
reviewed and approved by the Director of Community Development, if the Director
determines that findings for approval of a tree removal permit can bet met. This
section would also clearly state that approval of a tree removal permit is subject to
compliance with the tree replacement requirements.
J-'7')'
MCA-2006-02 - Heritage am.. .>ecimen Trees, Ch. 14.18
December 12, 2006
Page 8
Tree Replacement
Staff could establish a table that outlines specific tree replacement requirements for
removed trees. The tree replacement requirements would be based upon roughly
equivalent tree replacements for the size and species of protected tree(s) to be
removed. The size of the protected tree to be removed would be determined by the
trunk DBH (diameter at breast height) of the tree.
The model ordinance would state that tree replacements in accordance with the tree
replacement table will be required in conjunction with a tree removal permit, unless
the Director of Community Development determines that replacement trees as
required by the table cannot be accommodated on site. In such cases where the
replacement tree(s) cannot be accommodated on site, the Director of Community
Development may require an arborist appraisal valuation of the tree to be removed
and could request that an in-lieu fee based upon the appraisal valuation be paid into a
City tree fund.
Consideration could also be give to establish a City tree fund in which the Public
Works Department could use such funds to purchase and plant trees within the City.
Penalties
Staff believes that it would be difficult to assess penalties for the removal of proteCted
trees if the objective of the tree removal process is to replant trees for tree removals and
an applicant were willing to follow the prescribed tree replacement table standards in
the model ordinance. However, the Commission could consider applying an
additional administrative fee only for retroactive tree removals to cover the additional
cost in staff time to conduct field surveys and document the tree removals to
determine the tree replacement requirements.
This alternative option would not create any changes in the procedure that an illegal
tree removal requires an applicant to submit a retroactive tree removal permit
application other than an additional administrative fee. The retroactive tree removal
permit application would be reviewed and determined by the Director of Community
Development, unless removal of a heritage tree was involved.
Prepared by:
Approved by:
Aki Honda Snelling, Senior Planner ~ f\
Steve Piasecki, Director of Community Developme~
Attachments
Exhibit A - Draft Model Ordinance
Exhibit B - Memo from Public Works dated November 27, 2006 on City trees
Exhibit C - Sample of recorded deed restriction
Exhibit D - Flow chart of current tree removal permit process
Exhibit E - Minutes from the October 24, 2006 Planning Commission meeting
Exhibit F - Planning Commission report of October 24, 2006
d.'13
Exhibit A
CHAPTER 14.18: HE-RITAGE J\,.ND SPECIMEN
PROTECTED TREES
Section
14.18.010 Purpose.
14.18.020 Definitions.
14.18.025 Actions Prohibited.
14.18.030 Retention promoted.
14.18.035 Protected trees.
14.18.040 Heritage tree 9Qesignation.
14.18.050 Heritage tree list.
14.18.060 Plan of protection.
14.18.070 Recordation.
14.18.080 Heritage Tree Identification tag.
14.18.0!30 ^pplicotion to rcmO\fC.
14.18.100 Notice list to accompany application.
14.18.110 Appeal
14.18.120 Permit rcquired for removal
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14.18.130 Enforcing authority.
14.18.140 Exemptions.
14.18.145 Tree Management Plan
14.18.150 Application and Approval Authority}or :I.~~e _~emo~aLpermit.
14.18.160 Director to inspect.
14.18.170 Rcvic'v'v' of aApplication Requirements.
14.18.175 Noticing
14.18.180 Review and determination of application standards.
14.18.185 Tree Replacement.
14.18.190 _ Protection during conservation.
14.18.200 Protection plan before permit granted.
14.18.210 Applicant to guarantcc protcction-:-
14.18.220 Notice of action on permit-Appeal.
14.18.230 Penalty.
14.18.010 Purpose.
In enacting this chapter, the City of Cupertino recognizes the substantial
economic, environmental and aesthetic importance of its tree population. The
City finds that the preservation of spccimcn protected and hcritage trees on
private and public property, and the protection of all trees during construction, is
2
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necessary for the best interests of the City and of the citizens and public thereof,
in order to:
A. Protect property values;
B. Assure the continuance of quality development;
C. Protect aesthetic and scenic beauty;
D. Assist in the absorption of rain waters, thereby preventing erosion of top
soil, protecting against flood hazards and the risk of landslides;
E. Counteract air pollutants by protecting the known capacity of trees to
produce pure oxygen from carbon dioxide;
F. Maintain the climatic balance (e.g., provide shade);
G. Help decrease potential damage from wind velocities;
H. Preserve protected Protect specimen and heritage ouk trees. For the
above reasons, the City finds it is in the public interest, convenience and
necessity to enact regulations controlling the care and removal of protected
specimcn and heritagc trees within the City in order to retain as many trees as
possible, consistent with the individual rights to develop, maintain and enjoy
private and public property to the fullest possible extent.
Protected Specimen ond heritage trees are considered a valuable asset to the
community. The protection of such trees in all zoning districts including
residential zones is intended to preserve this valuable asset. (Ord. 1573, S 2,
1991; Ord. 1543, S 2,1991)
14.18.020 Definitions.
Unless otherwise stated, the following definitions pertain to this chapter.
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A. "City" means the City of Cupertino situated in the County of Santa Clara,
California.
B. B. "Developed residential" means any legal lot of record, zoned
single-family, duplex, agricultural residential and residential hillside, with
any structure (principal or accessory) constructed thereon.
rrleans an
la ;;3
~~velopment, including but not limited to subdi,:"ision of property,
rezoning, architectural and site approval, two-story residential permit,
minor residential permit, planned unit development, variance, and use
permit.
DG. "Heritage tree" means any tree or grove of trees which, because of
factors including, but not limited to, its historic value, unique quality, girth, height
or species, has been found by the Planning Commission I\rchitccturol and Site
Approval Committee to have a special significance to the community.
D. "Oak tree" 3hall include 011 trees of oak genus, including, but not limited
to, the Volley Oak (Quercus lobata) and California Live 001< (Quercus ogrifolio).
E. "Owner" shall include the legal owner of real property within the City, and
any lessee of such owner.
F. "Person" shall include an individual, a firm, an association, a corporation,
a co-partnership, and the lessees, trustees, receivers, agents, servants and
employees of any such person.
G. "Private property" shall include all property not owned by the City or any
other public agency.
H. "Public property" includes all property owned by the City or any other
public agency.
4
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I. "Protected Specimefl tree" means any class of tree specified in Section
14.18.035.any of the following:
1. ^ tree described on the table belmv:
Mea::;urement Single Trunk Multi Trunk
! F7.-r-C1f=A---t"'j. Dt~ ~"-a-l 8tc-+H1E-3iBff I 8t&FAa-e,c!
&f1eetes Gr-ae-e Giretffi9tereRc-e Gtr-eomferenGe
Native Trees:
Oak tree::; 4-iR! 10" (31") 20" (63")
California 4-iR! 10" (31") 20" (63")
Buckeye
Big Leaf Maple 4--1-f2! 12" (38") 25" (79")
Nonnative Tree::):
Deodar Cedor 4--i-f2! 12" (38") 25" (7!J")
Blue Atlo::; 4-iR! 12" (38") 25" (79")
Cedar
2. ^ tree required to be-protected os a port of a zoning, tentative mop, use
permit, or privacy protection requirement in an R 1 zoning dbtrict.
J. "Tree removal" means any of the following: (1) Complete removal, such
as cutting to the ground or extraction, of a protected tree or (2) Severe pruning,
which means the removal of more than one-fourth of the functioning leaf and
stem area of a tree in any twelve-month period of a protected tree the destruction
(in a t'vVc!'Je month period) of tiNenty five percent or more, as determined by the
Community Development Director, of any heritage or specimen tree by cutting,
retarding, girdling or applying chemicals. (Ord. 1886, (part), 2001; Ord. 1835,
5
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(part), 1999; Ord. 1810, (part), 1999; Ord. 1715, (part), 1996; Ord. 1573, S 3,
1991; Ord. 1543, S 3,1991)
14.18.25 Actions Prohibited
ft ~s:
rf~~T!O\!e {)V'
B. It is unlawful to remove any protected tree in any zoning district without
first obtaining a tree removal permit.
14.18.030 Retention Promoted.
Heritage ond Protected specimen trees are considered an asset to the
community and the pride of ownership and retention of these species shall be
promoted. The Director of Community Development shall conduct an annual
review of the status of heritage trees and report the findings to the Planning
Commission. (Ord.1715, (part), 1996; Ord. 1543, S 4.1,1991)
14.18.035 Protected Trees.
Except as otherwise provided in Section 14.18.140, Exemptions, the
following trees shall not be removed from private or public property, including
street trees subject to Chapter 14.12 of the Cupertino Municipal Code, without
first obtaining a tree removal permit:
A. Heritage trees in all zoning districts.
B. All trees of the following species that have a minimum single-trunk
diameter of ten inches (31-inch circumference) or minimum 20-inch multi-
trunk diameter (53-inch circumference) measured 4-1/2 feet from natural
grade:
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1. Oak trees
2. California Buckeye
3. Big Leaf Maple
4. Deodar Cedar
5. Blue Atlas Cedar
C. Any tree required to be planted or retained as part of an approved
development application, building permit, tree removal permit or code
enforcement action in all zoning districts.
D. Approved privacy protection planting in R-1 zoning districts.
14.18.040 Herita2e tree Dg,esignation.
Application for designation of a heritage tree may only be initiated by the
owner of property on which the tree is located. The applicant requesting the
heritage tree designation shall submit an application with the following:
1. Assessor's parcel number of the site;
2. Description detailing the proposed heritage tree's special aesthetic,
cultural, or historical value of significance to the community; and
3. Photographs of the tree(s).
Application for designation of a heritage tree shall be referred to the Planning
Commission for review and determination in accordance with Section 19.124 of
the Cupertino Municipal Code.
The Planning Commission, may, by resolution, designate a tree or grove of
trees as a heritage tree(s).
7
02 - ex>
Prior to adoption of such a resolution, not less than ten days written notice
shall be delivered to the owner. If the owner of the property protests the
designation.!. an appeal can be initiated. (Ord. 1715, (part), 1996; Ord. 1630,
(part), 1993; Ord. 1543,94.2,1991)
14.18.050 Heritage Tree List.
A heritage tree list shall be created and amended by resolution. The list shall
include the reason for designation, tree circumference, species name, common
name, location and heritage tree number. (Ord. 1543,94.3, 1991)
14.18.060 Plan of Protection.
A. The Planning Commission shall consider a plan of protection for
protected trees developed by the Community Development Department or a City-
retained certified arborist. The protection plan shall include information for
correct pruning, maintenance and fertilization methods.
B. It shall be the property owner(s) responsibility to protect the tree. --+i=le
pion sholl be pro\/ided for his/her use ot hi:J/her dberetion in order to obtain the
retention objection.
C. Privacy protection planting in R-1 zoning districts shall be maintained.
Landscape planting maintenance includes irrigation, fertilization and pruning as
necessary to yield a growth rate expected for a particular species. Where
privacy protection planting dies it must be replaced within thirty days with the
location, size and species described in Ordinance No. 1799 (privacy protection)
and its appendix. The affected property owner, with privacy protection planting
on his/her their ovm lot, is oot required to maintain the required planting and shall
be required to comply with Section 14.18.070. (Ord.1810, (part), 1999; Ord.
1630, (part), 1993; Ord. 1543,994.4,4.5,1991)
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14.18.070 Recordation.
All protected Heritage and specimen trees required to be retained as part of a
development application under Section 14.8 1.020 12 14.18.035, except for trees
on public property, shall have retention information placed on the property deed
via a conservation easement in favor of the City, private covenant, or other
method as deemed appropriate by the Director. The recordation shall be
completed by the property owner prior to final map or building permit issuance, or
at a time as designated by the Director of Community Development when not
associated with a final map or building permit issuance. at the time of use permit,
zoning, tentativc map or initial/ne'.'.: building permit issuance. (Ord. 1573, ~ 4.6,
1991; Ord. 1543, ~ 4.6,1991)
14.18.080 Herita2e Tree Identification Tag.
Heritage trees shall have on them an identification tag, purchased and placed
by the City, inscribed with the following information:
CITY OF CUPERTINO
HERITAGE TREE NO.
Please do not prune or cut
before contacting the City.
(Ord. 1543, ~ 4.7,1991)
14.18.090 ;\ppHcation to Remo'/c.
If on application for heritage tree removal is 3ubmitted, the rcquc3t shall be
forwarded to the Planning Commission for revie'lv' and appro'v'al. It is the
applicant's responsibility to provide supporting documents os requested by st8ff
or the Planning Commission. (Ord. 130, (port), 10a3; Ord. 1543, ~ 4.8, 1aa1)
9
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1 'U 8.1 O{}--NQticc List to ,\eccmpany ,t,.ppHcation.
The opplicont shall provide with the application a list of nomes of all persons
o'Nning ondlor occupying reol property located vvithin three hundred feet of the
property involved in the opplicotion. \Nhere 0 property is 0 multifomily d'v'~'elllng
with more than four unit:;, the nome of the building manager 'Nill be supplied on
t:f1e-+tstc~-Net-i-Be--6f-thc P-!-a-A--P~-RfI--f~:n-ts-s-tef:r-p.-e1~.fii'"-:g ,"viI! b~-;:F\-aHed to the nomes
on the lis~. (Ord. 1630, (purt), 1003; Ord. "i543, ~4.Q, '108-1-1
14.18.110 ;'\..ppeaJ.
An appeal of the Planning Commission's decision moy be :ubmitted to the
City Council, in core of the City Clerk \ivithin five working days of the decision. No
tree shall be removed until the appeal process has been concluded. (Ord. 1630,
(pmi), 1003; Ord. 1573, ~ 4.10,1001; Old. 1543, S4.10, 1001)
14.18.120 Permit Required for RemovaL
Except os provided in Section 14.18.140, no person sholl directly or indirectly
remove or couse to be remo'.;ed onY3pecimen or heritage tree os herein defined,
within the City limits, '.vithout first obtaining Q permit to do so in <Jceordonce vvith
the procedures set forth in this chapter. (Ord. 1543, S 5.1, 1001)
14.18.130 Enforcing Authority.
The Director of Community Development, or his/her authorized
representative, shall be charged with the enforcement of this chapter. (Ord.
1543, ~ 6.1,1991)
14.18.140 Exemptions.
The following situations do not require a tree removal permit prior to
removal~This chapter docs not apply to the follmving:
10
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A. Removal of a protected tree in case of emergency caused by the
hazardous or dangerous condition of a tree, requiring immediate action for the
safety of life or property (e.g., a tree about to topple onto a principle dwelling due
to heavy wind velocities, a tree deemed unsafe, or a tree having the potential to
damage existing or proposed essential structures), upon order of the Director of
gO~f'"!l_unity:Q~...Y~I2REnent_2I__~my member of the~b~~LfLQLfire depa~~~~!.
Howe\ier,--/\-~_ subsequent application for tree removal must be filed within five
working days as described in Sections 14.18.150--14.18.170 of this chapter. The
Director of Community Development will approve the retroactive tree removal
permit application and may require tree replacements in conjunction with the
approval. No application fee or other approval process shall be required in this
situation.
B.&---Dead trees, in the opinion of the Director of Community Development.
However, a subsequent application for a tree removal must be filed within five
working days as described in Section 14.18.150-14.18.170 of this chapter.
The Director of Community Development will approve the retroactive tree
removal permit application and may require tree replacements in conjunction
with the approval. No application fee or other approval piOcess shall be
required in this situation. Remo'Jal of all deeiduou3, fruit bearing tree3.
C. Thinning out/removing of trees in accordance with a recorded tree
management plan.
C. An appro'Ial for the removal of any tree granted by virtuc of a zoning,
use permit, variance, tentoti\fe mop, or Planning Commi:::sion opplicotion
~
11
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ft:-------Reme-va1-ef.-any tree in n developed rcsiE:i-eftRal single family, residcn#a+
duplex, agricultural residential and residential hillside zoning district, except
heritage, specimen or trees planted to comply \ivith privoey protection pursuant
to Chapter 19.28 (Single Family Residential (R 1) Zones) except those planted
on the offected property ovmers lot.
E. Public utility actions, under the jurisdiction of the Public Utilities
Commission of the State of California; as may be necessary to comply with their
safety regulations, or to maintain the safe operation of theirfacilities. (Ord. 1835,
(part), 1999; Ord. 1715, (part), 1996; Ord. 1630, (part), 1993; Ord. 1543, ~7.1,
1991 )
14.18.145 Tree Management Plan
In conjunction with the approval of a landscape plan on the subject
property, the property owner may record a tree management plan on the subject
property that will outline criteria for the removal of certain trees in the future by
laying out the eventual growth of trees on the property and specifying a time
frame in which the trees may require removal to prevent overcrowding of trees on
the property.
The tree management plan shall be reviewed and approved by the
approval authority approving the landscape plan prior to recordation of the tree
management plan.
Trees that are listed to be removed in the tree management plan may be
removed within the specified time frame per the tree management plan without a
tree removal permit.
12
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14.18.150 Application and Approval Authoritv for T,"ee Removal Permit.
A. A No person shall directly or indirectly remove or cause to be
removed any protected tree without first obtaining a tree removal permit,
unless such tree removal is exempt per Section 14.18.140. Applications
for a tree removal permit ~pecimen or heritage tree removal permit::; shall
be filed with the Department of Community Development on forms
prescribed by the Director of Community Development and shall state
the number and location of the trees to be removed, and the reason for
removal of each.
B. 8. Applications for protected heritage tree removal shall be referred
to the Planning Commission for final review and determination approval
in accordance with Section::; 14.18.000, 14.18.100 Qnd 14.18.110
Section 14.18.220 and Chapter 19.124~. The Planning Commission may
approve, conditionally approve, or deny the application for a tree removal
permit. A tree replacement requirement may be required in conjunction
with the tree removatpermit.The applicable tree removal permit fee shall
apply. Rcque~ts shall be revic'Ncd pur~;uant to Scction 14.18.110.
C. When a development application is under consideration by the approval
authority concerning the same property as the affected tree removal
permit application, the determination on the tree removal permit shall be
made concurrently by the approval authority.-(Ord. 1630, (part), 1993;
Ord. 1573, ~8.1 (part), 1991; Ord. 1543, ~ 8.1 (part), 1991)
14.18.160 Director to Inspect.
Upon receipt of an application for removal of a protected s-j3ecimcn tree, the
Director of Community Development or his/her authorized representative will,
within fourteen days, inspect the premises and evaluate the request pursuant to
Section 14.18.180 of this chapter. Priority of inspection shall be given to those
requests based on hazard or danger of disease. The Director of Community
Development may refer any such application to another department or to the
13
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Planning Commission or an appropriate committee of the City for a report and
recommendation. Where appropriate, the Director of Community Development
may also require the applicant, at his oWn expense, to furnish a report from a
staff-approved arborist, certified by the International Society of Arboriculture.
^pplicotions for tree removal may be granted, denied, or granted '.vith conditions.
+he Director--ef-GBmffH:!-flity Devclopmeffi-ma-y-;-as-B- condition of granting <J-j3er-mi-t
f-Bf--r em 0 \/ ;] I ef-a---spe-e+r'1'teAt-Fee;-f'eEjdfffi--tl=T€---a-ppH co. n t--t8-fepi-a-P,{--B-f-fep-lBf;:;e-a-tre-e
with more thon one tr~fie€He-f€-f*aec lost tree-eat1ef1Y:- (Ord.
1573, ~8.1 (part), 1991; Ord. 1543, ~ 8.1 (part), 1991)
14.18.170 Revie~.... of Application Requirements.
A request for removal of any heritage or protected specimen tree shall include
the following:
A. Application information. Application for a tree removal permit
shall be available from and filed with the Community
Development Department and shall contain the following
information, unless waived by the Director of Community
Development:
1. A written explanation of why the tree(s) should be removed;
2. Photograph(s) of the tree(s);
3. An arborist report from a staff-approved arborist, certified by the
International Society of Arboriculture, when required by the
Director of Community Development;
4. Signature of the property owner and homeowner's association
(when applicable) with proof of a vote of the homeowner's
association.
5. Replanting plan
6. Oth.er information deemed necessary by the Director of
Community Development to evaluate the tree removal request;
14
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7. Permit fee, where applicable;
8. Tree survey plan indicating the number, location(s), variety and
size (measured four and a half feet above grade) of tree(s) to be
removed.
protected by a condition of approvol a~~ociated 'Nith Q zoning,
a pprO\fO I application moy be Dpproved by the Director of
Gemmunity Development if deemed un~afe or dbea~ed or con
eau~e potential damage to exi~ting or proposed e~~entiol
structures. The Director of Community Development may olso
f8EltHre the applicant, at hi~ own expen~e, to furnish a report from 0
stoff approved arborist, certified by the International Society of
Aborieulture. If removed is requested for any other reoson, the
application sholl be referred to the Plonning Commi~~ion '.vhieh
originated the condition. Notice of any public heoring under thi~
ehap~er ~hall be given in the ~ame mann:::;r os provided in Chapter
1a.116 of this code. (Ord. 1835, (port), 1000; Ord. 1715, (part),
1 a06; amended during 12/03 ~upplement; Ord. 1630, (part), 1003;
Ord. 1543, ~8.1 (part), 1 OD1)
14.18.175 Notice and Posting
Notice of any public hearing under this chapter shall be given in the same
manner as provided in Chapter 19.124 of the Cupertino Municipal Code.
However, notice of such hearing shall be mailed to each owner of record of real
property within five hundred feet of the exterior boundary of the property for
which the application is sought.
14.18.180 Review and Determination of Application Standards.
15
d-5B
~ -- The approval authority shall approve a tree removal permit only after
making at least one of the following findings:Each request for tree removal shall
be evaluated based upon the standards listed under subsections ^ and B below.
^pprovol of a permit to remove a specimen or heritoge trce moy be-granted if
one or beth of thc standords is mct.
_~_____ That the tree or trees are irreversibly diseased, are in
danger of falling, can cause potential damage to existing or proposed essential
structures, or interferes with private on-site utility services and cannot be
controlled or remedied through reasonable relocation or modification of the
structure or utility services;
2. B. That the location of the trees restricts the economic
enjoyment of the property by severely limiting the use of property in a manner not
typically experienced by owners of similarly zoned and situated property, and the
applicant has demonstrated to the satisfaction of the approval authority that there
are no reasonable alternatives to preserve the tree(s).
3. That the protected tree(s) are a detriment to the subject property
and cannot be adequately supported according to good urban forestry practices
due to the overplanting or overcrowding of trees on the subject property.
4. That the protected tree, if located in the rear yard of a single-
family residential property, does not provide privacy protection or significant
visual value to the property and surrounding neighborhood and restricts the
economic enjoyment of the property by severely limiting the use of the rear yard
in a manner not typically experienced by owners of similarly zoned and situated
property.
B.
The approval authority may refer the application to another
department or commission for a report and recommendation.
16
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C. The approval authority shall either approve, conditionally
approve or deny the application.
D. The approval authority may require a tree replacement
requirement in conjunction with a tree removal permit. (Ord.
1573,99.1,1991; Ord. 1543,99.1,1991)
A. The approval authority may impose the following replacement
standards for approval of each tree to be removed in conjunction with an
approved tree removal permit, unless deemed unnecessary by the
approval authority:
1. Replacement trees, of a species and size as designated by the
approval authority and consistent with the replacement value of
each tree to be removed using the most recent edition of the
Guide for Plant Appraisal, published by the Council of Tree and
Landscape Appraisers, shall be planted on the subject property
on which the tree(s) are to be removed in the location(s) as
designated by the approval authority. Table A may be u~ed as a
basis for this requirement. The person requesting the tree
removal permit shall pay the cost of purchasing and planting the
replacement trees.
a. If a tree cannot be reasonably planted on the subject
property, the value of the removed tree(s) shall be paid to
the City's tree fund (will we be establishing this???) to:
I. Add or replace trees on public property in the
vicinity of the subject property; or
ii. Add trees or landscaping on other City property.
Replacement value of a tree shall be determined
17
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using the most recent edition of the Guide for
Plant Appraisal, as prepared by the City Arborist.
Table A - Replacement Tree Standard
Trunk Size of Number of Minimum Size of
Removed Tree B~pl:agement Trees Rep!acement Tree
---.--..--....--......-
(Measured 4 :h feet
above grade)
12 to 24 inches (or 38- 1 24-inch box
-
75 inch circumference)
Greater than 24 inches 1 36-inch box I
Heritage Tree 1 48-inch box I
14.18.190 Protection During Construction.
Protected Specimcn, hcritagc trees and other trees/plantings required to be
retained by virtue of a development application, building permit, or tree removal
permit zoning, subdivision, use pcrmit, vnrianec, or /\rchitccturol and Site
Approval Committcc application approval, and 011 trcc::; protcctcd by this chapter
shall be protected during demolition, grading and construction operations. The
applicant shall guarantee the protection of the existing tree(s) on the site through
a financial instrument acceptable to the Director of Planning and Development.
(Ord. 1543, S 10.1,1991)
14.18.200 Protection Plan Before Permit Granted.
A. A plan to protect trees described in Section 14.18.190 shall be submitted
to the Director of Public Works and to the Director of Community Development
prior to issuance of a demolition, grading or building permit. The plan shall be
prepared and signed by a licensed landscape architect or arborist certified by the
18
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International Society of Arboriculture and shall be approved by the Director of
Community Development. The Director of Community Development shall
evaluate the tree protection plan based upon the tree protection standards
contained in Appendix A at the end of this chapter.
B. The Director of Community Development may waive the requirement for
a tree protection plan both where the construction activity is determined to be
minor in nature (minor building or site modification in any zone) and where the
proposed activity will not significantly modify the ground area within the drip line
or the area immediately surrounding the drip line of the tree. The Director of
Community Development shall determine whether the construction activity is
minor in nature and whether the activity will significantly modify the ground area
around the tree drip line. (Ord. 1543, ~ 10.2, 1991)
14.18.210 ,-\pplieant to Cnanmtce Protection.
The applicant shall guarantee the protection of the existing tree(s) on the site
through a financial instrument acceptable to the Director of Planning and
Development. (Ord. 1543, ~ 10.3, 1091)
14.18.220 Notice of Action on Permit-Appeal.
A. Notice of. the decision on an application for a protected specimen tree
removal permit by the Planning Commission Director of Community Development
or his designated representative, shall be mailed to the applicant.
B. Any decision made by the Planning Commission Director of Planning
Emd De';elopment may be appealed to the City Council in accordance with
Chapter 19.136. Such decision may be appealed to the City Council by filing a
written notice of appeal with the City Clerk within ten working days after the
mailing of such notice.
19
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D. C. The City Clerk shall notify the applicant of the date, time and
place for hearing the appeal. The City Council may affirm, reverse, or
modify the decision of the Planning Commission Director of Community
Development, and its decision shall be final. (Ord. 1573, ~ 11.1, 1991;
Ord. 1543, ~ 11.1, 1991)
14.18.230 Penaity.
Violation of this chapter is deemed a misdemeanor unless otherwise
specified. Any person or property owners, or his agent or representative who
engages in tree cutting or removal without a valid tree removal permit is guilty of
a misdemeanor as outlined in Chapter 1.12 of this code and/or may be required
to comply with Sections 14.18.150, 14.18.170. Notwithstanding any other
provisions of this section, the unauthorized removal of a tree planted solely for
privacy protection purposes pursuant to Section 14.18.060 C shall constitute an
infraction. (Ord. 1810, (part), 1999; Ord. 1731, (part), 1996; Ord. 1543, ~ 12.1,
1991 )
APPENDIX A
STANDARDS FOR THE PROTECTION OF TREES DURING GRADING AND
CONSTRUCTION
OPERATIONS
The purpose of this appendix is to outline standards pertaining to the
protection of trees described in Section 14.18.200 of Chapter 14.18. The
standards are broad. A licensed landscape architect or International Society of
Arboriculture certified arborist shall be retained to certify the applicability of the
standards and develop additional standards as necessary to ensure the property
care, maintenance, and survival of trees designated for protection.
Standards
20
J ,.q '3
1. A plot plan shall be prepared describing the relationship of proposed
grading and utility trenching to the trees designated for preservation.
Construction and grading should not significantly raise or lower the ground level
beneath tree drip lines. If the ground level is proposed for modification beneath
the drip line, the architect/arborist shall address and mitigate the impact to the
tree(s).
2. All trees to be preserved on the property and all trees adjacent to the
property shall be protected against damage during construction operations by
constructing a four-foot-high fence around the drip line,' and armor as needed.
The extent of fencing and armoring shall be determined by the landscape
architect. The tree protection shall be placed before any excavation or grading is
begun and shall be maintained in repair for the duration of the construction work.
3. No construction operations shall be carried on within the drip line area of
any tree designated to be saved except as is authorized by the Director of
Planning and Development.
4. If trenching is required to penetrate the protection barrier for the tree, the
section of trench in the drip line shall be hand dug so as to preclude the cutting of
roots. Prior to initiating any trenching within the barrier approval by staff with
consultation of an arborist shall be completed.
5. Trees which require any degree of fill around the natural grade shall be
guarded by recognized standards of tree protection and design of tree wells.
6. The area under the drip line of the tree shall be kept clean. No construction
materials nor chemical solvents shall be stored or dumped under a tree.
7. Fires for any reason shall not be made within fifty feet of any tree selected
to remain and shall be limited in size and kept under constant surveillance.
21
) "q+
8. The general contractor shall use a tree service licensee, as defined by
California Business and Professional Code, to prune and cut off the branches
that must be removed during the grading or construction. No branches or roots
shall be cut unless at first reviewed by the landscape architect/arborist with
approval of staff.
D 9: - Any damage to existing tree CrDVlfns or root systems shall be repaired
immediately by an approved tree surgeon.
10. No storage of construction materials or parking shall be permitted within the
drip line area of any tree designated to be saved.
Disclaimer:
This Code of Ordinances and/or any other documents that appear on this site may not reflect the most current is<;:jislation
adopted by the tvlunicipality, American Legal Publishing Corporation provides these documents for intonnationai purposes
only, These documents should not be relied upon as the definitive authority for loeallegislation, AdditionaHy, the
formatting and pagination of the posted documents varies from the fonnatting and pagination of the official copy, The
official printed copy of a Code of Ordinances should be consulted prior to any action being taken,
For further information I'egarding the official version of any of this Code of Ordinances or other documents posted on this
site. please contact the Municipality directly or contact Ameriean Legal Publishing tali-free at 800-445-5588,
@ 2005 American Legal Publishing Corporation
techsUDDort@amleqal.com
1,800.445,5588
22
)-15
Exhibit B
CI
CUPEI{fINO
To:
From:
Date:
Re:
All Supervisors, Maintenance Worker III and Standby Personnel
Bob Rizzo, Assistant Director of Public Works
November 27,2006
Tree Removal Policy
This policy pertains to tree removals for any tree that needs to be removed by the Service
Center staff. Once it is determined that a tree needs to be removed please do the
following:
1. A Supervisor must complete the attached Tree Hazard Evaluation Form.
2. Take photographs of the tree showing if possible any potential hazard or
structural concern.
3. Submit the Tree Hazard Evaluation Form and photographs to me for review
and approval.
4. If the tree is protected, I will submit the Tree Hazard Evaluation Form and
photographs as a request for removal to the Planning Department. Also
copies of any removal request will be sent to the Director of Public Works.
5. If the tree has protected status we must receive a written approval to remove
from the Planning Department before we can schedule the removal.
6. Post a Removal Notice five (5) working days prior to the scheduled removal.
The procedure for emergency tree removals that are immediate public health and safety
hazards please follow steps I through 4. After these steps are completed the Supervisor
can authorized the immediate removal.
Thank you for your cooperation
)---q{p
<E"="-~,,:,,;;~
NOV y, 5 2DO~
Exhibit C
Recording Requested By
City of Cupertino
~IIIII I C
A~~i~~ID 13.00
i <.~~ '( ~ ".."-=,,,._..-,-'.~.;.":-==:;""'--
When Recorded Return To:.""...' ...-. -
City of Cupertino
Community Development Department
10300 Torre Avenue
Cupeliino, CA 95014
BRENDA DAVIS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
Old Republ ic Title Company
RDE *'* 012
9/19/2003
8:00 AM
DEED RESTRICTION
The undersigned, being the owner(s) of the property shown in the Santa Clara County Assessor's Roll and
identified as A.P.N. and addressed as hereby agree(s) that two (2) Grecian
Laurel (Laurus Nobilis) and three (3) Victorian Box (Pittosporum Undu1atum) along the southerly property line
shall be planted and maintained to screen views from four second story windows to the neighboring property at
.21869 Dolores Avenue. In addition, two (2) existing Privit (Ligustrum, 12" & 10") along the southerly property
line shall be maintained as privacy screening trees to screen views from four second story windows to the
neighboring property at
..Iwner(s).
Avenue. This declaration is binding on successors and assigns of the
PROPERTY OWJ-'TI?R(S):
-
Owner's Signature
Co-Owner's Signature
Print Owner's Name
Print Co-Owner's Name
~
Date
Date
J. -17
=
..
.-
.ct
.-
.c:
Jj
Request to Remove Tree
in Cupertino
~
~
,
~
Protected Tree
Exempt (Clear)
Hazardous/dangerous tree*
Deciduous, fruit-bearing
tree*
Public utility action
* Application required, but no :fee
No further action needed.
Exempt (Unclear)
· Arborist report required
Exempt
(Arborist)
Non-Exempt
(Arborist)
Non-Protected Tree
No further action needed
Tree Removal Permit Required
Planning Commission
Determination Required
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
6:45 P.M.
CITY OF CUPERTINO PLANNING COMMISSION
DRAFT MINUTES
October 24, 2006
CUPERTINO COMMUNITY HALL
TUESDAY
The regular Planning Commission meeting of October 24, 2006 was called to order at 6:45 p.m.
in the Cupertino Community Hall, 10350 Torre Avenue, Cupeliino, California, by ChaIrperson
Marty Miller.
SALUTE TO THE FLAG
ROLL CALL
Commissioners present:
Chairperson:
Vice Chairperson:
Commissioner:
Commissioner:
Commissioner:
Marty Miller
Lisa Giefer
Cary Chien
Taghi Saadati
Gilbert Wong
Staff present:
Community Development Director: Steve Piasecki
Senior Planner: Aki Honda
Assistant City Attorney: Eileen Murray
APPROVAL OF MINUTES:
October 10, 2006 Plan"i,,/! Commission minutes:
Corrections as noted:
. Page 15, Vice Chair Giefer: Third Bullet: It says story poles that should be replaced
with clothes line. The same page, bullet 5: "He" should read "She".
. Page 27, Vice Chair Giefer: References to "He" should read "She".
. Correct spelling of applicant's name is Hamm, on Pages 19-24. .
Motion:
Motion by Com. Chien, second by Com, Saadati, to approve the minutes of
the October 10, 2006 meeting as amended. (Vote: 5-0-0)
WRITTEN COMMUNICATIONS: None
POSTPONEMENTSIREMOV AL FROM CALENDAR:
2. ASA-2006-19; M-2006-05
(EA-2006-17) Mike Rohde
(Vall co Fashion Park)
10123 No. Wolfe Road
Architectural and Site Approval and a Modification
to a Use Permit (U-2005-19) for the parking structure
north ofMacy's to exceed the permitted 32-foot height
limit and to allow parking on the fourth level.
c2 -'1 q
Cupertino Planning Co~. .1lSSlOn
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October 24, 2006
Request removal ;;-om calendar. C
September 26, 2006 Planning Corr
Exhibit E
3. TM-2006-09 (EA-2006-15)
Dennis Liu; 10377 Amistad
Court
Tentative Map to subdivide a 21,3
into two parcels of 11,101 and 10,231 square feet,
respectively. Request removal from calendar.
Planning Commission decision final unless appealed.
Postponed from the October 10, 2006 Planning
Commission meeting.
Motion:
Motion by Com. \Vong, second by Com. Chien, to Hcffiove Applications
ASA-2006-19, M-2006-05, EA-2006-17, TM-2006-09 and EA-2005-15 from
the Planning Commission calendar . (Vote: 5-0-0)
ORAL COMMUNICATIONS:
Jennifer Griffin, Rancho Rinconada resident:
. Referred to a new housing development at the corner of Lawrence Expressway and
Pruneridge Avenue, in the City of Santa Clara, and expressed concern about the potential
problems which may occur if the school district boundaries were changed. She said she felt
that the existing homes should have priority in sending their students to the existing high
schools and elementary schools.
Steve Piasecki, Community Development Director:
. Urged Ms. Griffm to contact the school district and the City of Santa Clara regarding her
concerns.
CONSENT CALENDAR: None
PUBLIC HEARING:
1. MCA-2006-02
City of Cupertino
Citywide Location
Municipal Code Amendment of Chapter 13.18 (Heritage and
Specimen Trees). Continuedfrom the September 26,2006 Planning
Commission meeting. Tentative City Council date: Unscheduled.
Aki Honda, Senior Planner, presented the staff report:
. Reviewed the background of the application, which originated at the August 2006 City
Council study session to discuss possible amendments to the tree ordinance as a result of its
concerns on receiving a number of applications for retroactive tree removal. City Council
asked that the city look at addressing greater remedies for tree removals which occurred
without permit and also to provide greater clarity in the exiting ordinance. They requested
that the Planning Commission provide direction on possible amendments to the ordinance and
bring it back to the Council; it was brought to the Planning Commission at the September 26th
meeting for initial review and at that time the Commission asked for public comment to be
given and also for the city arborist to make his presentation and recommendations on the tree
ordinance.
. She reviewed the discussion items and staff responses relative to the public testimony heard
and the review of the model tree ordinance, including cost of tree removal permits; penalties
for illegal tree removal; definition of dangerous and dead trees; list of protected trees and
definition of heritage and protected trees; protected tree size; and replacement plan, as
outlined in the staff report.
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Cupertino Planning Co. .1lSSlOn
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October 24, 2006
. Staff recommends that the Planning Commission discuss and provide direction on
amendment to Chapter 14.18 and continue the meeting to the December 12, 2006 Planning
Commission meeting to provide staff sufficient time to incorporate suggested changes and
address any questions or issues raised by the Planning Commission.
Staff responded to Commissioners' questions relative to maintenance of trees, penalties imposed
for tree infractions and tree removal, definition of protected trees.
Steve Piasecki:
. In response to Com. Chien's question about the goal of the tree management plan, he said
that when new developments come in, a landscape plan IS developed and is typically over
planted for immediate cover. A good landscape architect could say that in 15 years it would
need to be thinned out. It could be recorded against the property; and the future HOA,
office, or owner will come into the city and say that they want to thin out the trees which are
on the recorded deed and is permitted according to the management plan.
. He said the dilemma will be that the public is not going to understand that when every other
tree is being cut down on Wolfe Road in front of Vall co; hence a public relations issue may
result. He said they feel it is in the interest of the health of the tree and in the interest of the
canopy to allow that to happen.
Com. Chien:
. Questioned if it was the intention to apply the plan and enforce it on anybody from RI
residence up to large developments.
Steve Piasecki:
. Rl would be more difficult, although you could have an instance where you over-planted a
privacy protection screen so you could get a more immediate impact and you may want to
have a plan that would say, in the year 2010 you can take out every other Italian Cypress; that
would be okay; that would be their option that they could elect to do to make it clear and
simple.
. An individual homeowner could ask to have that recognized up front or it could be a
subdivision where you required a six lot subdivision that all these five or six different
locations where you are doing privacy planting, and/or it is obvious that this canopy will
overwhelm the small lot in time they could choose to identify that or record it, and we would
allow that to happen in due time.
. Relative to the costs for developing the plan, having an arborist identify the planting scheme
is the biggest cost; otherwise it is a part of the normal development review process. Staff
would try to keep it minimal, but an arborist may say they need some time to figure it out..
. There have been instances come before the Planning Commission where HOAs took out
every redwood tree in a particular location; if they had a management plan in effect, they
might have said that they knew they could take out five of the ten trees, because they have
reached that point in their life cycle where they need to canopy up and are trying to head off
some problems faced in the past and provide more flexibility in the ordinance.
. He cautioned the Commission that they are compleX: ordinances, because everything
imaginable happens under a tree ordinance. He encouraged them to take the time needed to
craft something in the best interest of the individual property rights, and the best interest of
the city overall.
Aki Honda:
. Said that the ordinance applied to public parks and private property, except for street trees,
and except for dangerous and dead trees.
c2--JO I
Cupertino Planning Co,-_ .1lSSlOn
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October 24, 2006
Com. Wong:
. Asked staff what ordinance the street trees were covered in.
· Referred to Vice Chair Giefer's concern that if there are certain trees that should be
protected, she suggested a method of putting it under heritage trees, which creates more
homework to find them. He suggested the Commission or public write emails to staff with
suggestions for a plan to add more trees to the heritage trees.
Steve Piasecki:
'" He said the Planning Commission could ask that funds be budgeted and suggest a citywide
survey; it IS not something that staff would go out and find; there are thousands of trees 1I1
Cupertino.
Aki Honda:
· Said that street trees were not in the ordinance, but in Chapter 12 of the Municipal Code.
Com. Wong:
· Said he was concerned about lack of education of the community; and said that ignorance
cannot be a defense for removal of trees. He said he was also concerned about enforcement
of the ordinance. He asked what the city's plan was to implement the policy.
Aki Honda:
· Said that arborist Barry Coates suggested having a brochure available for the public that lists
key points, when a tree is protected and when it is not. He suggested that it be included in the
application forms.
Steve Piasecki:
· Reported that the city of Los Gatos uses a strategy where they revoke the business license of a
tree company that removes a protected tree; keeping in mind that the city attorney would
advise you still need a due process provision somehow for that because were they really
guilty of doing that, did they do it with full knowledge?
· The attorney advises to have something recorded on the deed, and one thing that could be
done is to go back and retroactively say that there is a landscape plan and it will be recorded
on the deed.
Eileen Murray, Assistant City Attorney:
· Said that removal of a 200 year old specimen tree would be a misdemeanor, and a $1,000 fine;
a privacy protection shrub would be $250. She clarified that the misdemeanor charge will
cause them to come in and apply, spend $1,000 for an arborist report, and $1,000 for a
replacement tree.
· Presently there is not a civil process or administrative process in the ordinance, only a criminal
process.
Com. Wong:
· Asked staff to provide a sample of a recorded deed when the application returns on December
12th.
· Relative to the tree replacement on Page 1-39, is it a new tree replacement plan, or an old plan?
Aki Honda:
· Said that it is all new language; and is taken from the Town of Los Gatos, because there are
1- ---10:<
Cupertino Planning C( mSSlOn
5
October 24, 2006
not specific tree replacement standards in the current ordinance. This is to stimulate some
thoughts and discussions to consider. Staff is not necessarily recommending this particular
format, this format uses tree canopy spread to determine a replacement ratio; the city arborist
recommended that it was better to use the trunk diameter at the diameter breast height to
determine the tree size of the tree removed, and use that to determine the tree replacement
requirements that you would like to impose.
Com. Wong:
. Requested staff to provide their suggestion in the staff report, so that the Commission could see
the difference from the Town of Los Gatos, because he said he felt it looked excessive in his
opmion, and he wanted to see what other alternatives the city arborist suggested
. Expressed concern about the outreach done for tonight's public hearing and also regarding the
outreach of the tree professional folks to come and hear their side of the story as well as both
sides of the coin.
Aki Honda:
. Clarified because it was a public hearing item, no new notices were sent out; interested people
and those who went to the initial meeting or viewed it on the City Channel would follow up to
find out the outcome and lmow that it was continued to tonight's meeting.
Com. Wong:
. Relative to the December 12th Planning Commission meeting, he suggested that the community
be re-notified, and the tree professionals and city arborist be specifically notified. (Staff said
they could do a citywide notice).
. He asked for the pros and cons for adding to the protected tree list. He expressed concern that
adding to the list of protected trees, would put the burden on the homeowner or applicant to
ascertain if the tree is protected or not. He said he was looking at the process as well as
enforcement.
AId Honda:
. She concurred that the burden would fall on the property owner; concern was raised in the
public comments that the more trees added, the more it would affect the property owners and
their yards. From an enforcement standpoint, it would be whatever the Commission decided
for the ordinance or the existing ordinance if it is an existing situation.
Com. Wong:
. Said it may become a nightmare for staff, to find the trees, and a dedicated planner may have to
be hired to do tree enforcement.
Vice Chair Giefer:
. Relative to the current policy for heritage trees, she asked staff to explain the present process
of how a tree becomes a heritage tree. Who would nominate the trees to be heritage trees?
What is the process for nominating a tree to be considered a heritage tree?
AId Honda:
. Said that the ordinance as currently written says the heritage tree goes through DRC review; in
the definition section, it states that the DRC would find the tree. Anyone can nominate a tree; it
would go through an application process through DRC.
Steve Piasecki:
. The defmition of a heritage tree states that it is any tree or grove of trees which, because of
J -(03
Cupertino Planning Cc_ .1lSSlOn
6
October 24, 2006
factors, including but not limited to historic value, unique quality, girth, height, or species, has
been found by the Planning Commission, to have a special significance to the community.
Anybody can nominate any tree, any grove of trees, to the Planning Commission.
. There is no specific application process, they come to the Planning Commission meeting, and
ask that you designate certain trees. More information would be requested and it would be
agendized for discussion and notification would be provided to everybody in the area of the
particular trees location, to seek their opinion.
Vice Chair Giefer:
c Said it was a good dialog to have because it is unclear how to move forward on this process_
She said as a Planning CommIssioner, she did not feel that the policy IS explicit enough in
how you do something and what penalties one might face if you do have a problem. She said
they would not be discussing it if they weren't having issues with people doing things we
would rather them not be doing, such as removing trees.
. Said it was the behavior they were trying to correct.
. Said they could do some corrections on the tree list. Asked if there was a difference having a
protected tree list as an addendum to the ordinance rather than in the ordinance? The answer
given several years ago was, if it is in the ordinance, you can change it less frequently and it
may make sense to take the protected tree list out because it is easier to maintain the list. How
do you feel about that now?
. Said the protected tree list is the species of trees.
Steve Piasecki:
. Said the intent is to look at it as being somewhat self-enforcing; property owners are
responsible, they need to go somewhere and find it in an ordinance format that they clearly
violated the ordinance. If you have it as a side tree list that gets changed more readily without
public notice, part of it is just the notice, making sure people are aware. It doesn't help when
after a citywide notice, only two people show up at the meeting.
Vice Chair Giefer:
. Said she received many emails since the last meeting regarding different ideas on how to
move forward on the tree policy. She encouraged the community to continue sending in
emails.
. She said previous commissioners mentioned that for a developer or contractor, it is an
infraction; but a misdemeanor for a homeowner if they remove a tree. She asked for the
reason for the difference?
Eileen Murray:
. She said it was an incorrect interpretation; it depends on the kind of tree; if it is a privacy
protection tree, it is an infraction, everything else is a misdemeanor.
. She did not mow what the rationale was when that was put into the ordinance, but it is
specifically spelled out that it is an infraction.
. She said it was the decision of the Planning Commission; should people be criminalized for
removing a privacy shrub?
. Said it is a privacy protection planting, not specimen trees, and most trees that are protected
in the constructio~ arena, are specimen trees. We really go out of our way to protect them for
good reason. But privacy protection can be any landscaping, and that is really why I think it
is an infraction.
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Cupertino Planning Ce. .1lSSlon
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October 24, 2006
Steve Piasecki:
. Relative to the heritage tree list, he suggested Page 1-30, Section 14.18.050, be expanded to
identify the process for heritage trees being nominated.
Vice Chair Giefer:
. Said she would be more comfortable with that if the other commissioners agreed. She asked
if the commission set what the penalty is for the misdemeanor. (Staff responded that it was
set by law).
. She questioned Los Gatos' $5,000 charge.
Eileen Murray:
. Said that she would inquire about the charge from the Los Gatos city attorney, because her
reading of the state law says $1000 maximum on administrative process.
. Saratoga has an administrative process set up, and maybe Los Gatos does; Palo Alto is a
charter city, so they can charge. Cupertino is 110t a charter city; it is a general law city.
. Said she would return with information 011 the $5,000 because in some of those ordinances,
they talked about a civil action and they may be discussing their administrative process, or
they may be discussing some other civil action which we don't have in our ordinance for tree
removal.
She said she was not aware of what tort would allow set up of that penalty. She said she
would find out more about their process, what civil action they are taking that allows for that,
unless it is damages or replacement costs or some other thing they are designating up to
$5,000.
Vice Chair Giefer:
. Asked how they could proactively notify residents if they have a protected tree or heritage
tree that has already been recorded. She noted that when purchasing a home, one mayor may
not go through all of the closing documents and see that there are protected or heritage trees
on the property.
. What can the city do to try to educate homeowners, property owners and businesses that they
have trees that fall into those categories. How extensive a task is that?
AId Honda:
. Said that it was a fairly extensive task; it may not be known currently if the tree is protected
by a privacy protection plan and it is on the property owner's burden to know. It is difficult
to know when property changes hands to let the new owner know that it is a protected tree on
their property.
. A brochure could be handed out to homeowners when they apply to add onto their house, that
would provide information on existing trees on the property, and to inform them to check
with city staff whether or not the tree(s) are protected.
. Said that currently when someone comes to the Planning Department counter, they may not
know a lot about the property. Staff informs them that they need to check if there are any
trees on the property at that time to check to make sure they are not protected. If someone
brings in a plan for staff to look at, they will check it.
Eileen Murray:
. Said that one problem with that is protected trees may be recorded but specimen trees are not;
there are thousands of trees in the city, and they are not static; one year they are not protected
and another year they get big enough to be protected, and there is no way to assess that.
. The only way to protect those trees is by education, and getting the word out on what a
c2-lo5
Cupertino Planning Cc .11SSlOn
8
October 24, 2006
specimen tree is. One ofthe things that code enforcement is doing now, is rotating articles in
the Cupertino Scene, one is on protected trees; one is on dogs; one is on parking, and there
are four articles being rotated into the Scene so each month there is something about code
enforcement.
Steve Piasecki:
. Said that when development applications come to you, you are familiar with seeing a fairly
extensive tree inventory, and some of those are specimen trees and in some cases, through
that development approval process, you may authorize the removal of a specimen tree
because you are obtaining some other objective, providing a reasonable use of the property or
protecting another grove of trees where this tree was in the way and it was Just not practIcal
to save it. You are familiar with all that; once that is done you try to make sure the
conditions say that it shall be recorded so that future property owners are aware of the
requirements to protect these trees. That is not foolproof either, because as you know we see
trees removed.
. It needs to be flushed out more and that will be one of the tasks with the continuance, to look
at some practical ways.
Vice Chair Giefer:
. Said there appears to be a disconnect between the landscape plantings where I think back when
I first started back on the DRC there were a number of people who came in where trees were
removed in a planned development, where the trees were supposed to be recorded. The new
owner comes in, buys one of the houses, removes the tree; the neighbors were upset because to
the best of their knowledge, it was recorded, but it had never been recorded with the land
because it was planned development; I don't understand the technicality of that. It seems to me
that we do have some cleanup there where if we have trees that are heritage, specimen, or as
part of this committee decides to make it a misdemeanor to remove trees from a landscape plan
that they should be recorded, and we should try to make that connection to try to help educate
and solve that problem as well.
. I am interested in what the city attorney willleam and come back to us; because I do think that
it is the carrot and the stick; we want to encourage behavior which is correctly coming in and
asking for a tree removal and have appropriate fees for that and a reasonable list of what is
protected. But we also want to levy what fines we can on the back end, plus tree replacement,
when the behavior is not appropriate; when they remove the tree because it is cheaper just to
pay $1,000 than it is to not build that extra 1,000 square feet of a home.
Eileen Murray:
. One issue about the fines, if we had an administrative process and we could add $1,000 in that,
we can also issue a citation for a misdemeanor, so you can collect at both ends; but when you
rely on the court for a misdemeanor, even though the maximum fine is $1,000, they might fine
them $180; we can't rely on the court. They are more likely to be looking at shoplifters, drunk
drivers and other misdemeanors, and see tree issues as small in the scale of things.
Vice Chair Giefer:
. Suggested adding native madrones to the protected list; they are native to the area although
more up in the hills. No one has requested removal of them and she said she would not want to
hasten their longevity if there are any existing.
. I like the criteria of using native species as a part of the protection; the western sycamore
which is a very valuable, very large tree, with a lovely canopy; I do feel that the recommended
size at breast height of 4 inches is too small at that height; it should be a bigger species,
because it is a fairly robust, quick growing tree, and one of the comments which was made
J --JO~
Cupertino Planning Cc .11SSlOn
9
October 24, 2006
during our hearings was we are trying to come up with tree sizes that are comparable in age,
and I think that the tree, a 4 inch sycamore is not the same age as some of the comparable oaks
that are being specified; so I think we can almost double that trunk size.
. Suggested that the California pepper tree also be added to the protected tree list, since there are
. very few in the area.
. I also think we do have some trees that are non-native, that in general, I would be very willing
to remove from the protected list, except for some specific areas, based on the input we
received from the community as well as the city arborist.
,
. There is a lot of detailed information that I have, and actually some specific questions, When
we look at under protected h-ees 14.18.035, on that chart, on the multi-trunk diameter
circumference; is that the cumulative diameter of all trunks. (Staff response: Correct, at 4.5
feet)
. I don't know the best way to convey this, but I have a Jot of notes that are not large changes to
this, but just some different ideas in terms of verbiage; one of the questions I have is how are
we going to get caught up on identification tags on trees that are heritage trees; which based on
the report you gave us before, there is not a lot of them in the city that are specified as heritage.
The palms on Palm Avenue as an example; one of the residents recently told me that there is a
construction site going on and one of the palms they believe were protected, was removed
during construction. Again, an example of trees that were specifically protected, tags never
installed on those trees, 14.18.080, identification tags: heritage trees shall have on them an
identification tag purchased someplace by the city and inscribed with the following
information: and it is regarding being designated as a heritage tree, and we have never done
that. So it sounds like technologically it is possible, Mr. Coates talked about that when he was
here and we probably have a half dozen that need tags. Why is the city not in compliance.
. I would like to add how are we going to maintain that on our current ordinance that we are not
following.
. I would like to add some burden for staff on how we are going to maintain and go out and
check and make sure those tags are in tact in the future, because once we put them up, we want
to ensure they stay up and the trees stay up.
Steve Piasecki:
. Said they need a mechanism to do that; tags can be removed as well. They can at least say
they did it.
Aki Honda:
. Said staff could discuss it with the city arborist, as he had suggestions about types of tags.
Vice Chair Giefer:
. Said she was concerned about the area of Director approval on trees. There are various levels
of staff training; She recalled an incident when a new staff member erroneously issued a tree
removal permit at the counter for a heritage oak tree.
. Expressed concern about how and who will make the director's approval to issue the tree
permit. She said she did not want it be complex, provided that the tree is properly identified,
but how will staff be trained. She said she did not have a problem if it was the city naturalist
who is the only one that is going to issue them, because that person has some training.
However, if it is every planner on staff, staff would have to be aware that there are some trees
that we need to be concerned about on lots. She said she was concerned that people get very
busy, and aren't going to look at the trees, they may be looking at the site and the home that is
going to be built. People who are new and may not understand the policy and the sensitivity,
so again it is personnel that oftentimes can have something well crafted, fall through once we
all agree on it.
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. Asked how they would adequately train their staff.
Steve Piasecki:
. It is not only the 'who' but the procedure that we would follow; it might be a good thing to talk
about whether it becomes an administrative procedure or an ordinance procedure.
Vice Chair Giefer:
. Said she agreed that trunk height is a better way to go than canopy replacement. She said she
received many emails about canopy replacement, and conceptually agreed that it is what they
were trying to achieve. They want to have a robust urbail canopy within the city which should
be 40% of the total square footage of the city.
. She said she did not not how to make that happen without crowding, and nature can eliminate
the weaker species, but it also might bring up half your house while that is occurring. I don't
want to have to wait for that to play out as well.
. Said she supported the breast height measurements instead of canopy.
Steve Piasecki:
. Asked that the Planning Commission standardize either 10 inch or 12 inch.
Vice Chair Giefer:
. Said the age of tree is important.
Steve Piasecki
. He said there will be discussion and the commissioners will express what they want. He said
that he preferred standardization.
Eileen Murray:
. Said she agreed with that and had talked to Code Enforcement about the difference of things.
She said she understood Mr. Coates' point as an arborist. Relative to enforcement, the tree
service person says you should make it uniform or people won't understand it. The presence
of the stump does not indicate what type of tree it was.
. This ordinance is for enforcement, it is not for planting of trees.
Vice Chair Giefer:
. I think that is well taken; once a tree is cut down and you are looking at a stump; what was it.
That is a difficult call for us to make, but in advance if the tree is standing and somebody asks
for a permit to remove it, where you can correctly identify the tree, would you be comfortable,
or do you feel there is a difference in forcibility of a standing tree which has not yet been
removed vs. one that has been removed.
Eileen Murray:
. Said the public would be more comfortable if they knew it was a lO inch tree or 12 inch, and
that was what the rule was.
Vice Chair Giefer:
. Said it was problematic regarding oaks, and they would lose a lot.
Com. Chien:
. Asked if they preferred that the trunk diameter at breast height would be 10 inches for all
protected species.
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October 24, 2006
. Asked the city attorney if code enforcement went out, wouldn't they have to figure out what
species it was regardless of what the diameter was. Why would it matter whether it was 10
inches for oak or 12 inches for a big leaf maple?
Eileen Murray:
. They would need to know that it was a protected tree, so they have to know something about
that.
Steve Piasecki:
~ Relative to stating 10 inches, he said they would have to check to see if it is protected. The
simplicity of that is important Il1 ordinances like this.
Eileen Murray:
. Said it is easier for code enforcement to not have to prove that it was a maple or a buckeye.
They would have to know it was a specimen tree.
Vice Chair Giefer:
. Pointed out that somebody who lives nearby generally sees the tree and says it is an issue; they
are cutting down a tree that is protected; 99% of the people living in the community see a tree
going down, and just ignore it. One percent who sees it cares, and says they think it is a big
leaf maple or oak tree and calls code enforcement before the tree is down, and so you are going
to have a small percentage who actually do have some idea of what tree is being removed and
cares, and other than that, they are going to be able to remove the tree and get away with it.
. Said it would be helpful to have some idea from code enforcement on how many times they go
out and find a tree that is protected that should not be removed and somebody is cutting down.
. She expressed concern if they said an 8 inch trunk, instead of 10 inch trunk, because there is a
sign.ificant difference in terms of the age ofthe 8 inch oak vs. a 10 inch oak.
Eileen Murray:
. Frequently they go out on calls and it is not a protected tree. Although they are not arborists,
they do have knowledge about the trees. Whatever you do say, it should be uniform for
enforcement purposes.
Vice Chair Giefer:
. She referred to Appendix A of the current policy standards, No.6, where it refers to the area
under the drip line of the tree, stating that it should be kept clean, no construction materials,
etc... She said she would also like to add no parking or storage under the trees which is what
currently is on the building plans.
. Suggested making it less expensive for people who follow the rules and come to the Planning
Commission in advance to ask for a tree removal permit; and making it much more expensive
for people who remove the tree first and go the Planning Commission and ask for forgiveness.
. Whatever we can do to make that happen and then we need to educate the community and do
what we can to record the trees that we have and tag the trees that we have and maintain those
tags.
Chair Miller:
. Clarified some situations brought up by some community members at previous hearings and in
looking at Page 1-6 with respect to city trees, it says there is no distinction between protected
trees on public or private property, and the tree removal permit process for trees on public
property is the same as for trees on private property subject to the ordinance.
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. When the Blackberry Fam1 tree came up, there was a discussion where it was unclear as to
how much latitude the city had or didn't have to remove trees. With respect to that, what this
says is that the city trees come under the ordinance like every other tree in the city, there seems
to be a loophole that is if the tree is declared a hazard and needs to come down, it is under
exemptions 14.18.140 on Page 1-33 where it says "upon a tree deemed unsafe or a tree having
a potential .... .Fire department
. He asked why they did not require a subsequent tree removal permit after a tree has been taken
down.
Aki Honda:
o r think when we were first gomg through the prelnmnary reVIews of this ordinance and looking
at possible changes and as we were reading this and we initially looked at taking that out, not
necessarily recommending it at that time, but thought it adds to confusion saying you are
exempt from this ordinance but you actually have to get a tree removal permit afterwards in
this case, which means you need to comply with the ordinance. It is confusing to say it is
exempt, but you still need a permit. But I think after hearing discussions subsequent to that, hat
it looks like the Planning Commission recommendation to actually add that back in, so we
could go ahead and make that language to add it in.
Chair Miller:
. Said it was a question of checks and balances; and also at that meeting staff indicated that the
Blackberry Farm tree was brought to us just as a point of information and not something that
we had control over or could vote on; and I am not sure; and that is another issue for me in
terms of checks and balances.
. Expressed concern that someone can decide they want to take a tree out and then have an
arborist come in and declare that the tree needs to be taken out; and then get around the intent
of the ordinance. He asked if that was a misinterpretation.
Steve Piasecki:
. Based on what you are describing, you would probably want to take it out of the exemptions
section and say there will be a process but keep in mind that staff showed pictures of some
trees in Blackberry Farm that nature took out because they were undermined by the creek. Is
that exempt or is it not exempt.
Chair Miller:
. Said they did not want to stop people from taking down dangerous trees; but wanted to protect
life and limb, and make sure that that part of the ordinance is not abused.
. Relative to the Blackberry Farm issue, one of the residents also made the comment that the tree
was marked for removal and wasn't taken down for several days after that. Staff made the
decision not to take the tree down until after the park was closed. He questioned why the tree
be left for several days knowing there was a dangerous situation, rather than acting on it
immediately.
Steve Piasecki:
. Said they were not part of that process and did not know what the rationale for the decision
was. He noted there were different degrees of danger and said he was not sure if the area was
roped off, or if they did something else to take precautions about that particular tree, but it
would seem that there would be a reasonable process you would follow in light of dangerous
trees. We don't want to have the public bearing the liability for a tree that is in imminent
danger of falling.
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Chair Miller:
. Said that hearing that from one of the staff members, he felt they may need to add some
language into the ordinance that says if a determination is made that the tree is a hazard, there
should be something that states the removal of that tree will be done in an expeditious manner.
Steve Piasecki:
. Commented he had a similar experience with a 300 year old oak tree in another city, where the
first arborist said it was going to fall, and advised removal of it. Three arborists' reports and
three months later they still debated if it could be pruned, be propped up or some way to save
the tree. it was in an area where it wouldn't harm anyone; so it was a different strategy to find
out if it was necessary. There may be other mechanisms to explore.
Chair Miller:
. Pointed out that it was a good example, and said as noted in the language, it may not have to be
taken doVvTI immediately, but at least should be roped off in such a way to ensure the public
safety until it is taken doVvTI.
. Asked for staff s comrrients on the suggestion for an exemption if solar energy was
implemented.
AId Honda:
. Said the issue was brought up at the City Council meeting in August and City Council gave
specific directions to leave things the way they are and not to specifically address that.
Com. Saadati:
. Do you keep a list of all the protected trees; is there a database as we become aware of the
protected trees. What about the ones in public places and in more open areas.
Steve Piasecki:
. A list is kept of heritage trees, but not one for all protected trees. There could be 20,000
citywide protected trees.
. It was pointed out earlier, does this apply to the depths of someone's backyard. We haven't
talked about whether you would want to make a distinction for that; whether it is publicly
visible or not; some of these large trees are, they canopy above two story houses and if you
look at your objectives in the ordinance, the purpose section talks about the canopy is just as
important, whether they are visible or not; the canopy is important because it generates oxygen.
. Commented that it was one of the hardest ordinances to craft in a manner that is fair and
equitable.
Com. Chien:
. Relative to the proposed process, he asked staff what they currently do when somebody calls
and says there is a tree in danger of falling.
Steve Piasecki:
. Said the cases he saw were indisputable. He said he personally went out and looked at the tree
and declared it dead. One could even argue if a tree is dead, is it even a tree? If it is dead, it is
a bunch of wood that is preparing to come doVvTI. He said he did not have any problems with
the section.
. There have been occasions where staff said to people that there doesn't appear to be dead or
dangerous trees; the property OVvTIer would have to prove it to the city for staff to consider the
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October 24, 2006
evidence. The Commission could suggest that the City Council reduce the fees citing that
there is some public objective and the public should pay for this and subsidize it. He said that
the city has tried to go to cost recovery so that the public is not subsidizing someone's private
interest; and it could be suggested.
Com. Chien:
. It is either the Director's tree removal or the Planning Commission tree removal.
Steve Piasecki:
e Typically it has been the first one: it has been clear and we have tried to be as flexible as we
can to make reasonable mterpretatlons of that.
Com. Chien:
. Questioned if the fees may deter people from following the law. (Staff responded that it does.)
Com. Wong:
. Asked staff to provide a breakdown of"how the $819 fee was determined, and the $2536
related to the Planning Commission tree removal.
. Requested that staff provide a walk through of an application beginning at their phone call;
include the process and what fees are charged.
Aki Honda:
. Said that in Mountain View a tree removal request is done on a non- developmental related
property, then it is free of charge; they have a community services forestry division that
reviews a permit and makes a determination. If there is a development application involved,
they are charged a $476 fee and it goes through the planning permit process for review.
Steve Piasecki:
. Said in Mountain View, the fees are lower because the public is subsidizing the process, and
they have staff on hand providing the service to the public.
. Said they could do that, but it is a subsidy; they are private interest in removing the trees that
are being subsidized by the general public.
. Said that it would be a tradeoff for Cupertino with other things that the Council wants to
afford. The Planning Commission can make a general statement that you would like this to be
user friendly and as inexpensive as possible and even if there is a small subsidy, that is
acceptable. You and the Council would figure it out with all the competing priorities for the
public's money and how it might be spent; you could just indicate your intent. I don't think
the Commission is experts on the budget an:d can't become experts on the budget.
Com. Wong:
. It is cause and effect regarding educating and enforcement that we want, going back to the 10
inches or 8 inches, you want it to be uniform and clear, the same thing regarding the fees.
Steve Piasecki:
. Said it was a good general statement to make and staff could provide some detail on what goes
into doing these things for a better understanding of why the fees are the way they are, but
generally the Commission can say yes, we think this is a deterrent to people coming in, it is
easier to chop the tree down or it might be an incentive here. Maybe some subsidy will help
implement other public objectives for maintaining canopy in appropriate situations.
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October 24, 2006
Com. Wong:
. Said he would like to explain to the public how the numbers were derived.
. Asked that staff research the recent tree ordinance for deterrence for cutting trees down in the
city of San Jose.
Steve Piasecki:
. Explained that San Jose is a charter city, with a due process that someone goes through before
they can assess the fine.
. Explained that Cupertino is a general law city and the due process for general law system is the
court system.
Eileen Murray:
. Said that the city could establish an administrative process where it can be done in-house.
Explained that charter cities are usually very large cities or very old cities that have adopted a
charter which is usually more liberal than a general law city; it abides by the government code,
and state statutes. Many were established before California became a state; some are more
recent and have adopted a charter.
Vice Chair Giefer:
. Asked if there was a different structure for trees that are not dangerous or dead. (Staff
responded that it was the tree removal fee)
. Said it is not a per tree removal; but a per site fee, per application. If there are 15 oak trees and
they are all to be removed, it is the same fee to pay as just removing one tree. It is very
expensive to remove one and it is a bargain if you have a bunch of trees.
Aki Honda:
. Correct, unless for example there is 15 oaks and it takes more than $1,000 for the arborist to
review and do his assessment of the trees, and we would ask for more.
Vice Chair Giefer:
. Is the homeowner made aware of that potential upside to the fee in advance or is it something
they are advised of later, that there is going to be an incremental arborist fee for the tree
assessments.
Aki Honda:
. Generally we need to fmd out first before we can ask to charge that fee, so we find out from
the arborist beforehand and let the applicant know.
. In response to Vice Chair Giefer's question if they have evaluated a per tree fee system, she
said they have not looked at any particular fee system yet, and are waiting for direction from
the Planning Commission.
Vice Chair Giefer:
. Said she would be interested in knowing what type of fees there were on a per tree basis,
because if there is a single home owner, normally they want to remove one tree at a time. For
a homeowner, it would be pricey to remove one tree; whereas fora developer it is not a bad
deal.
. Suggested a recommendation to understand better what other cities are doing for single tree
removal.
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October 24, 2006
AId Honda:
. Said that Los Gatos' tree removal permit application is $120 for the first tree request removal
and $60 for each additional tree.
Chair Miller opened the public hearing.
Jennifer Griffin, Rancho Rinconada resident:
. She said as Cupertino becomes .a more sophisticated city, and as the population increases, the
expectation is that the ordinance will protect the trees in Cupertino.
(!) She said that she was celiain Saratoga, Los Altos, Los Gatos and Palo Alto have very good tree
ordmances that protect trees on site; and she expected such a document to be of the same
caliber in Cupertino.
. She said it was very important to try to keep as many trees as possible, and if they do have to
be removed, that they be replaced with appropriate trees to maintain the urban forest.
. She reiterated her concern about ensuring that trees on lots where there is active construction,
whether in a shopping center, Rl area or around a business, that the trees are protected.
. She said that people are building underground rooms in the RI areas, and it was important to
ensure that when building basements, the tree roots are protected.
. She said many concerns have been expressed and she was hopeful that when the document
when finished, it would be a model for other cities and for Cupertino too.
Chair Miller closed the public hearing.
Vice Chair Giefer:
. Reiterated that she would like to know what other cities are doing fee wise for an individual
homeowner to remove a tree vs. a developer.
. Said that Chair Miller summarized her primary concern which is the fee structure needs not to
be onerous; people should follow the fee structure and to make it tougher for them on the back
end, either requiring tree replacement or fmes.
. Said she was concerned that they are not being equal on terms of removing privacy planting,
trees or shrubs. It doesn't seem equal that if one is a misdemeanor and the other is not; there
should be consistency in terms of what the fines are.
. I would like to understand how we can catch up and somehow build a database of heritage and
protected trees; it is not something we will do immediately, but maybe at the end of our
deliberations, we make a commitment that we are going to start one, and we could put it
online.
. Relative to consistency, I believe we are noticing for home construction at 500 feet; this says
300 feet for tree removal so why not go the extra 200 feet and make it consistent with all our
noticing. It might be something we should consider.
. The fee structure is one of the key things and I would also look toward staff because it sounds
like they have some strong opinions and some good experience that we can rely upon; what
haven't we thought about, such as trees on common property lines; what things have we not
even started to talk about that we are just missing that hasn't occurred to us as a Commission. I
would appreciate those ideas as well, and I look forward to seeing where we come from both
legally and recommended fee strictures at our next meeting.
Com. Wong:
. Said he agreed with most of the prior points. Asked staff to walk through the process of a tree
removal, at both Director's level and the Planning Commission and how they derived at the
fees itemized ifthey were to either keep the current fees or recommend to City Council to
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October 24, 2006
lower it for one tree or a number of trees.
. Said he wanted to understand the logic of the fee structure so that the people are encouraged to
go through the process.
. Relative to the canopy, the city arborist had a suggestion regarding the tree height; if you can
recommend a suggestion instead of doing the canopy which was a Los Gatos plan.
AId Honda:
. Asked if they recommended a tree replacement based upon the diameter at breast height. She
said they could get those from the city arborist.
Com. W oug:
. The 500 foot notification of trees, if we can keep that standardized with all of our other
notification to make sure it is standard.
. Said he agreed with staff s suggestion to keep the diameter uniform, perhaps 10 inches;
suggest they talk with the city arborist and decide what is uniform, so for both enforcement
purposes and for educational purposes, for a lay person, I like what staff suggested, to do that
too.
. He referred to Chair Miller's suggestion about the exception process, and recommended that
the five day notification language be put back in.
. I understand that there is a difference between charter city and general law city and there was a
suggestion of talking about an administrative process to make sure everyone has their due
process and I am not sure if we want to go down the road of an administrative process or a
fraction process, but I want some kind of deterrent; I don't feel comfortable going as far as a
misdemeanor; I think a lot of folks are not educated enough regarding our tree ordinance, but I
want to find some kind of mechanism, and as Steve said, don't push the process; let's take our
time, but there has to be some way of a deterrent that will educate folks or motivate them to
contact the city.
. I know that we are going to work on a tree brochure; there has to be some mechanism if staff
can make a recommendation through an administrative process or whatever the law says, if the
law says that you can maximize up to $1,000 or $800, let's see what the max says before we
fall into; we don't want to go to court because that is a very expensive process. Again, it goes
back to my theme, education, enforcement and developing a policy that is user friendly, that is
clear and that is uniform so that it may be a developer or an applicant or just a regular
homeowner; how can we make this tree ordinance user friendly.
Com. Chien:
. Asked city attorney, you stated in your memo from last time that if we were to develop an
administrative or civil tort procedure, one of the requirements is you need to have a body to
hear the case. Could the Planning Commission be considered that body?
Eileen Murray:
. Cited a case, Haas vs. County of San Bernadino regarding the hearing officer in administrative
cases, where they determined in that particular case that the hearing officer had a bias because
he/she was an employee or part of the city government; whether a Planning Commissioner
would be considered such is not known.
. She said it was doubtful a Planning Commissioner could be a hearing officer because they are
the decision makers regarding the ordinance in the first place, and wouldn't be considered
unbiased that way. She said it probably would not be possible, but she would look into it. The
Planning Commissioner is already the hearing officer relative to the permit process and the
application process.
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Com. Chien:
. Said he agreed with Jennifer Griffin, that the city needs to have more sophistication in the
ordinance. In the past months there have been a number of cases where trees were cut and
staff has been left to deal with it. The Commission as a whole has asked themselves why is it
that there are repeated cases of people cutting down trees and then coming back to us. The
problem was in the ordinance; it is not clear; the fees have a way of deterring people from
following the law. Because there is a public interest, we have an interest to protect our
suburban forest or urban canopy, and to the extent that there is that public interest, that means
the public needs to start subsidizing and bringing those fees down to prevent getting the
opposite effect.
It In terms of the specifics, he said he felt they should look into the civil administrative
procedure; either look at lowering the fees so that people are encouraged to follow the law, or
if the fees are sufficient, then look at a civil procedure in which they can add on top additional
penalties for those who chose not to follow the law.
. The diameter at the breast height is a good idea; we need to change to that. The heritage tree
process should be expanded and clarified; I am not sure that is done right now. Said he would
like to see some data on code enforcement calls; having the number of calls relates to trees
would be helpful data. The tiered system for fees is a good idea for one or many trees.
. More public participation is needed. The tree ordinance is customer focused and similar to the
R 1 ordinance because everybody wants to improve their homes; everybody wants to cut a tree
down. It has a component where the customers are forced to have to read the ordinance and it
needs to be clear to them. He proposed that a brochure or self-help guide be created with
photos of the protected trees and layman's language so that the community members could
understand it.
. Said he was not convinced that it needs to be uniform diameter, since there are only a few
protected species; it is not too hard to process for code enforcement. Dangerous trees that are
cut and therefore need to come back for a permit; that has been taken out of the current
ordinance, I am not sure the rationale is; I would support adding it back in.
. Relative to the tree management plan suggested by staff, he said he was not convinced about
the idea that homeowners should have to get their architect or an arborist to develop a
management plan for their landscaping. He said it felt like an extra layer of bureaucracy at this
point.
Steve Piasecki:
. Clarified that it was not a mandatory requirement, but an option that people can utilize in the
future; With an approved landscape plan, if they had a management plan 10 or 20 years later,
they wouldn't be charged anything to thin the forest, vs. coming back through the process for
every tree they want to remove now, that was over-planted 20 years earlier. It is an attempt to
provide a mechanism that it becomes automatic if they identify it up front and it is an available
option.
Com. Saadati:
. Felt that simplification would have better results as far as the guidelines; diameter would work
best. San Jose has similar guidelines which would be good to check.
. Stated that he would like a count of how many unauthorized trees have been removed over the
past years.
. Supported the concept of a brochure that could be handed out at libraries and other local
businesses.
. Relative to the arborist's opinion, it should be noted in the ordinance that if the arborist is in
the tree removal business, caution should be exercised about getting their opinion, because of
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Cupertino Planning Co. nSS1011
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October 24, 2006
potential bias.
. For heritage trees, he suggested putting signs in the ground, with some information about the
tree with contact information.
. Supported hefty fines for companies that remove the trees unlawfully.
. Need to be able to address homeowners who many years ago planted many trees in their yard
and they want to remove one or two. Is it fair to ~ot allow them because they are being
penalized for a good thing they did in the past.
. Look at trees in the city streets and how to add more trees, and if it could be part of this
ordinance or not and consistency as far as the species of trees.
@ Simplify the fee structure to have something pertaining to multiple trees vs. individual trees.
Steve Piasecki:
. Said the irony is you may have somebody that has 10,000 square foot lot and they have a lot of
trees; while they are providing the canopy; there may be someone with an equivalent sized lot
with one tree, so you may want to provide mechanisms where it is more flexible.
Com. Wong:
. He asked staff to provide a sample of an Rl, recording the deed, what would it look like; is it
under a title report or what is that mechanism; is it user friendly or not.
. Relative to Com. Chien's conunent about code enforcement, he said he was not sure it is more
useful to have code enforcement do a report to the Commission or to have a code enforcement
officer come to a public hearing and tell their experiences about enforcement.
. He also recommended that the city naturalist do a report or come to a Commission meeting to
see if there are any questions. He said that a conflict existed from the last meeting on what the
city naturalist was saying and he felt they could get both the city arborist and the city naturalist
in to see the difference of opinion.
. Also going back to public outreach, is tree services company. What have their experiences
been in other cities where their experiences here in Cupertino; how can we make it user
friendly, clear and concise.
. Relative to Vice Chair Giefer's comment about adding more trees to the protected lists, he said
they could discuss it now or at the next meeting, but he preferred having the city arborist and
city naturalist here to have that discussion, because of the many different thoughts on that.
Chair Miller:
. Said he would like to see the exception process tightened up, and also some clear guidelines of
what someone does or doesn't do if a tree is determined to be dangerous.
. Agreed that the fee structure needs to provide more of an incentive for people to come in when
they want to remove a tree, not after they have removed it.
. Said he supported the diameter measurement and also using a uniform diameter as staff
suggested. Also supports staff s desire to provide an easy mechanism for thinning out trees or
groups of trees that have been deliberately over-planted to get a rapid growth early on.
. Said that since energy prices have escalated and continue to escalate, and solar is becoming a
very competitive way of providing energy, consideration should be given in the ordinance
about allowing some flexibility in those instances where rooftops are covered by tree cover.
. He discussed the distinction between front yard and rear yard. He said a rear yard is something
that is a more private area, and the homeowner should have more flexibility in their rear yard.
The front yard is an area more public and consideration may be given to treating those
differently.
J --1/ 1
Cupertino Planning Co llSSlon
20
October 24, 2006
Vice Chair Giefer:
. She said that since the change in the fee schedule in 2004, it would be helpful to know the data
in terms of how many tree removal requests there were prior to that change vs. after the 2004
fee change; and how many retroactive tree removal permits were requested, both before and
after that. It would provide a clear indicator if people were saying the fees are too high, and
they will beg for forgiveness later.
Com. Chien:
. Relative to the noticing issue, he said that using the Scene would be advantageous, and that
everybody affected by the ordinance should be notified.
() Said he would also support a mailer being sent to the community members.
Com. Saadati:
. Said he agreed with the use of the Cupertino Scene to inform the community about the
meeting; and noted that the entire city was noticed for the last meeting and people would get
schedule information from the website and would attend the next meeting if interested.
Com. Wong:
. Suggested a press release be done to all the publications, such as Cupertino Courier, San Jose
Mercury News, and Rural Journal. He asked what the cost of the post card notification was.
(Response: $5,000)
Steve Piasecki:
. Said an advantage of using a Scene article is that it allows prompting of some of the potential
questions; what kind of trees, what is considered a heritage tree, questions to peak the
community's interest and bring them a more educated viewpoint; so that they have thought
through some of the questions.
Chair Miller:
. Suggested using an article in the Scene and sending notices specifically to the persons who
spoke at the meetings. He noted that there was a low speaker turnout despite the notification
sent.
Vice Chair Giefer:
. Suggested also using the email notification list available.
Motion: Motion by Com. Wong, second by Com. Saadati, to continue Application MCA-
2006-02 to the December 12, 2006 Planning Commission meeting. (Vote: 5-0-0)
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION
ENVIRONMENTAL REVIEW COMMITTEE: No meeting held.
HOUSING COMMISSION:
. Com. Wong reported that the meeting time was changed to 9 a.m.
. He reported on the presentation about the special needs groups in the community.
.J ---I t ~
Exhibit F
CITY OF CUPERTINO
.10300 Torre Avenue, Cupertino, California 95014
DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM
Application:
Applicant:
Property Owner:
Property Location:
MCA-2006-02
City of Cupertino
Various
Citywide
Agenda Date: October 24, 2006
Summary: Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen
Trees)
RECOMMENDATION
Staff recommends that the Planning Commission discuss and provide direction on
Chapter 14.18 (Heritage and Specimen Trees) of the Cupertino Municipal Code.
BACKGROUND
On September 26, 2006, the Planning Commission opened the public hearing and
initiated discussion on possible amendments to the City's tree protection ordinance.
During the meeting, Barrie Coate, the City Arborist, presented his recommendations
for adding trees to the ordinance's current list of protected trees and described his
rationale for recommending these trees. The Commission also heard from several
members of the public who expressed the following concerns:
Excessive fees for tree removal permits
Impacts of trees canopying over onto neighboring properties
Fees charged for approval to remove dead h-ees
Lack of guidance for property owners with designated heritage trees
Adding too many trees to the protected tree list
. Excessive tree replacement requirements for tree removals
Vague determinations for" dangerous" and" dead" h-ees
Confusion over what are protected trees versus non-protected trees
Whether a tree fund will be established
Maintaining dead trees for habitat purposes where safe
Ensuring protection of trees during construction
DISCUSSION
Upon hearing public testimony and reviewing the model tree ordinance, the Planning
Commission provided several comments on the following discussion items, which
include staff's responses:
J -II q
MCA-2006-02 - Heritage an ,ecimen Trees, Ch. 14.18
October 24, 2006
Page 2
Cost
. Lower cost of tree removal permits; do .
not penalize owners for following the
law. .
. Where no permit fees are required, .
find out why those cities charge no
fees and how they recover their costs.
.
Comment noted. Await Commission's
direction.
Other cities' fees:
Campbell: $110
Los Gatos: $120jtree and $60jeach
additional tree with $1,500 arborist
deposit
Saratoga: $75
Morgan Hill: $56
D Los Altos: $50 if independent of
development application;
otherwise, h-ee removal is reviewed
as part of the development
application.
San Jose: $130-280 for dead tree
removals; $243-$1,095 for live tree
removals
Palo Alto: $158 + other fees
(noticing, microfilming, permit
automation, etc.)
Mountain View charges no fees for tree
removal permits if tree removal is not
part of a development project and the
permit is reviewed by their community
services forestry division; otherwise, if
part of a development project, the
planning department reviews the tree
removal permit application and there is
a $476 fee. The community services
forestry division reviews these permits.
Sunnyvale charges no fees for tree
removal permits because they consider
this a service to its citizens. Therefore,
there is no cost recovery. It is estimated
that it takes approximately 4-5 hours of
staff time to process each tree removal
permit. Additionally, tree removal
permits are reviewed and approved by
an on-staff certified arborist that
reduces the cost of a consulting
arborist.
:2 -1;2C)
MCA-2006-02 - Heritage an ,ecimen Trees, Ch. 14.18
October 24, 2006
Page 3
(~otiiffi:~I).t?st;%~~t~~Re$ J:5!~e}::;~~if;0~;
. Provide a breakdown of the City's tree. Cupertino's tree removal application
removal application fees. fee is based upon staff time to work on
applications, since the City Council
approved a cost -recovery fee schedule
in 2004. Staff will provide the fee
______------- ___~___~____ _______~t~laly_'~~~'_di3y'=_at th~~1~e~ti12K__ .
Sta.ffRe~. orise ....
. Penalize property owners for illegal. Comment noted. Await Commission's
tree removals; consider high penalty direction.
fees. City Attorney states that the City has
no mechanism to impose fines at this
time, but staff is currently researching
mechanisms used by other cities to
im ose fines.
How much of a penalty is too. City Attorney will also research
excessive (from City Attorney's amount of fines imposed by other
stand oint cities.
... Sta.ffR~s .
of. Staff recommends the following
definitions:
"Dead" tree to mean any tree with no
living tissue.
"Dangerous" tree to meanany tree that
is an imminent hazard or threat to the
safety of persons or property requiring
immediate action in case of an
emergency.
. To provide an efficient and cost-free
process for removal of trees that are
dearly dead or dangerous, staff
recommends:
Penalties
"Dan erous" and "Dead" Trees
Provide a clear definition
"dangerous" and" dead" trees.
;1-/.21
MCA-2006-02 - Heritage an ,ecimen Trees, Ch. 14.18
October 24, 2006
Page 4
Protected Trees
Add indigenous trees that define the .
skyline.
When the tree is indisputably dead
or dangerous, have the Community
Development Director approve the
tree removal (no fee or deposit). In
case of an emergency situation
where the iTee rnust be removed
immediately before the
Community Development Director,
or sheriff or fire department can
make the determination, a
subsequent or retroactive tree
removal application shall be filed
within 5 working days, as is
required in the existing ordinance.
When state of tree is disputable,
require an arborist report (mill.
$1,000 deposit) that may result in:
Director's Tree Removal ($819)
application fee if arborist finds tree
to be dead or diseased.
Planning Commission Tree
Removal ($2,536) application fee
and noticing deposit ($400) if
arborist does not find tree to be
dead or diseased.
.
Comment noted. Await Commission's
direction.
Staff concurs with the City Arborist's .
recommendation to add coastal
redwoods and incense cedars since
they are indigenous trees, define the
skyline and are long-lived.
Although it is not indigenous, the City
Arborist also concurred with the City
Naturalist to add the western
sycamore tree as a protected tree as it
is valuable in defining the skyline.
d- -IJa.
MCA-2006-02 - Heritage an lecimen Trees, Ch. 14.18
October 24, 2006
Page 5
. Add California Pepper trees
Provide criteria for adding trees to the .
protected tree list.
. List what is protected and what is not .
protected.
. Clarify difference between "heritage" ·
and "protected" tree
Comment noted. Await Commission's
direction.
City Arborist noted at the last meeting
that California Pepper trees are not
indigenous and can become a
nuisance. In sorne Southern Cahfornia
cities, they are prohibited due to their
lllvaSlveness.
The existing list of protected h'ees in
the ordinance were recommended by
the City Arborist based on criteria that
these trees define the skyline, are long-
lived and in some cases, are
indigenous to the area.
Staff believes it would be difficult to
provide specific criteria for adding
trees to the protected tree list since
each tree is listed for different reasons.
If the Commission would like to add
other trees to the protected tree list, the
tree(s) could be reviewed on a case-by-
case basis.
The ordinance already addresses non-
protected trees in the Exemption
section of the ordinance (Section
14.18.140 .
A "heritage" tree is listed as a type of
"protected" tree.
A definition for "heritage" h'ee already
exists in Section 14.18.020(D):
"Heritage tree means any tree or grove
of trees which, because of factors
including, but not limited to, its
historic value, unique quality, girth,
height or species, has been found by
the Planning Commission to have a
special significance to the
Community."
;L - J ~3
MCA-2006-02 - Heritage an .Jecimen Trees, Ch. 14.18
October 24, 2006
Page 6
.
"..ce:"""":'::;" _
"':..'/:'.
Clarify if City trees and/ or street trees ·
are covered under this ordinance.
....
a
The existing "Purpose" section of the
ordinance (Section 14.18.010) specifies
that the purpose of the ordinance is to
preserve "specimen and heritage" (in
other I.vords. protected) trees on public
as well as private property.
Therefore, there is no distinction
between protected trees on public or
private property, and the tree removal
permit process for trees on public
property is the same as for trees on
private property subject to the
ordinance.
The ordinance also excludes street
trees and" exempt" trees, whether on
public or private property.
Street trees are covered under a
separate ordinance under Chapter
14.12 and are not subject to this
ordinance.
Staff also recommends clarifyill.g
Section 14.18.035 to state that p:r:otected
trees on public property are subject to
tree protection requirements, except
for street trees and" exempt" trees.
.
Protected Tree Size
Discuss criteria for defining tree size.
At the last meeting, the City Arborist
stated that dbh (diameter at breast
height, or 4 1/z ft above grade) is the
standard used around the world to
calculate a' tree's value, since tree
diameter is easily accessible.
. City Arborist states that. canopy size
can be used to determine the tree's
value, but it is not as easily accessible
as trunk diameter to measure.
J-/clL/
MCA-2006-02 - Heritage an !ecimen Trees, Ch. 14.18 .
October 24, 2006
Page 7
. Need to be cautious of requirements ·
leading to over planting of properties.
___ ___.__~____._______________.___ _.. ___ .'______n__ _____ . _
Need to be cautious of using canopy D
coverage to determine tree
replacement requirements.
Re lacement Plan
Comments
Clarify where recommendations for
replacement trees come from.
Staff has added Section 14.18.180(A)(3)
that would allow approval of a tree
removal permit to thin out trees due to
over-planting or over-crowding on
PEope~ti(?s , _ ,_ !
As indicated by the City Arborist!'
determining canopy size is not as
easily accessible as trunk diameter.
Staff also cautions that consideration
be given so that over-planting on
properties does not occur if canopy
coverage is used to determine tree
re lacements.
StatfRes orise: .'
Section 14.18.185 IS taken from
standards used in the Town of Los
Gatos' Tree Protection Ordinance.
This section was included in the draft
ordinance to stimulate discussion on
tree replacement requirements.
Staff is not recommending use of
canopy size to determine the tree
replacement requirements, given the
City Arborist! s comments on the
difficulty of measuring canopy size.
Instead, staff recommends that the dbh
of a removed tree be used to determine
the replacement ratio, as recommended
by the City Arborist.
Staff also recommends that language
be added to the ordinance allowing the
Director of Community Development
to require tree replacements for
removal of exempt dead or dangerous
trees in case of emer enc .
Staff has made no changes to the draft model ordinance at this time and will await the
Planning Commission! s direction to incorporate changes.
d -I ~ 5
MCA-2006-02 - Heritage aT'- .Jecimen Trees, Ch. 14.18
October 24,2006
Page 8
Tree Management Plan
Staff recommends that a section be added to the draft model ordinance that will allow
a property owner the option of recording a tree management plan on his/her property
in conjunction with the approval of a landscape plan on the property. The tree
management plan would outline criteria for thinning out/removing trees in the future
by laying out the eventual growth of trees on the property and specifying a time frame
in which trees lTlav require thinning out/rernoval te nrevent overcro\ivdin~ of trees on
"' 'L.J I t t.:J
a property.
Prepared by:
Approved by:
Aki Honda, Senior Planner
Steve Piasecki, Director of Community Development
- /;: ;:'" /.
<,,",' .::--/. ,,;,"
......')-- ,.' ._, I '.
O'I--t ~l.J.c:-. {i-.(.'4Z..(J C iI{.
/
,/ /" /l "'--
" C/' '/L..'
Attachments
Exhibit A - Minutes from the September 26, 2006 Planning Commission meeting
Exhibit B -- Planning Commission report of September 26, 2006, including the draft
model ordinance
G:\P1anning\PDREPORT\pcMCAreports\ Tree Ordinance, Oct. 26 PC Mtg.doc
J -/.2(p
Cupertino Planning Commission
23
September 26, 2006
Motion by Com. Chien, second by Com. Wong, to deny Application
MCA-2006-03. (Vote: 3-1-1; Com. Wong, Chair Miller, and Com. Chien Yes;
Vice Chair Giefer No; Com. Saadati Abseny
otion by Com. Wong, second by Co~~i~n, to present a Minute Order to City
Co ~il to clarify the lease betwe.eenn ~ e City of Cupertino and the Blue Pheasant
Resta ant regarding 7b, the Uyof the Property, stating that the use of the
pn-ope~.ty . -tn21H be <wl11!sistelrlt ,vitti/the nIles and nogulations of the City's PR zoning
dish-jet which includes the niglldy dosing time of H p.m.") City Conmdll to d2ldt~!
if it means th~he premises shut down at 11 p.m. and everybody has to exit the
building, or is the ano. er interpretation.
Motion:
Com. Wong:
. Said he wanted int.
something to it.
what goes on inside the building, not the parking lot.
Com. Chien:
. Said he wanted to limit th
. tes and was open to the suggestion of adding
. Saadati absent.
5. MCA-2006-02
City of Cupertino
Citywide location
Municipal Code Amendment of Chapter 14.18 (Heritage and
Specimen Trees) Tentative City Council date: Unscheduled.
Aid Honda, Senior Planner, presented the staff report:
. Reviewed the background of the Municipal Code Amendment of Chapter 14.18 (Heritage and
Specimen Trees) as outlined in the staff report.
. On August 15, 2006 the City Council conducted a preliminary study session on the city's
Heritage and Specimen Trees Ordinance and provided comments to the Planning Commission
to address additional tree protection measures for possible incorporation into the ordinance.
. City Council provided comments to the Planning Commission on topics including tree
protection, approval authority, penalties of unlawful tree removal, noticing, and solar panels
which are summarized in the staff report.
. She reviewed the public comments received including a request to allow tree removal where
trees block solar energy panels, and to request that PG&E reduce pruning of trees and use
special insulated wires to allow trees to be closer to the wires; and to support tree protection in
the city during construction. It was expressed that the tree removal fees were excessive. It was
also requested to consider adding redwood trees, sycamores and black cottonwoods to the
protected tree list.
. The recommendations for additional protected trees were reviewed and are included in the staff
report, Page 5-2 and 5-3.
. She reviewed the penalties imposed by other cities for trees removed without a tree removal
permit approval; and the revisions to the draft model ordinance.
. Discussion items for the Planning Commission to consider include adding or removing trees
from the protected tree list; determining a definition for what is considered unsafe or a dead
tree; decide the approval authority for a tree removal permit; and retroactive tree removal
permits, whether they be done at staff level or at the Planning Commission level; and decide
c1--I:J 7
Cupertino Planning Comrnlssion
24
September 26, 2006
what type of penalties to be imposed for unlawful tree removals; and what type of tree
replacement requirements to impose if added as a penalty requirement; consider placing
noticing on trees during application or appeals processes; and to consider allowing tree removal
of protected trees where trees impact a property due to overcrowding and over-planning.
Com. Chien:
. Asked the arborist his opinion on using the width of the canopy, as proposed in the ordinance, to
detem1ine things such as value, rather than using the width of the trunk.
Barry Coates, City arborist:
ED The trunk diameter at 4-1/2 feet above grade is the standard used by arborists all over the world,
and since it is a standard used everywhere and the trade understands it, and it is the first item on
which a tree's value is calculated, that should always be included. However, that doesn't mean
that you couldn't add the canopy dimension as part of your evaluation; the trunk diameter is
merely an easily accessible definition of tree mass. It is not simple to measure the canopy mass,
but it is simple to get to the trunk.
. The trunk diameter measurement is designed to evaluate the size of the tree. Adding the canopy
mass to it as part of the evaluation is a very valid idea, because the canopy represents the tree's
value to the city and the neighborhood more than the trunk diameter does.
, Said the biggest deterrent for cities to use to prevent people from cutting trees is regulations and
fines. If somebody cuts down a tree and the newspaper publicizes what is done about it, it is an
effective deterrent for illegal tree cutting.
. Regarding the criteria used for adding trees to the list, he said that the arborist evaluates the size,
its health, its structural condition, whether it is damaging pavement or a structure and all of
those go into an equation yielding an opinion. For example a Coast Live Oak that is a beautiful
specimen but is structurally a disaster, they may recommend its removal even though it is a
healthy specimen. That is happening in Saratoga now and a lot of controversy about it, but if
the tree is hazardous; whether it is healthy, is irrelevant. There is a definition of the different
native oak species in the document; previously just native oaks were protected.
. Said that he felt educating the public on the process was important. He suggested a brochure, or
a door hanger about cutting and removing trees that could be distributed when someone
purchases a home or submits an application to reconstruct a home in Cupertino.
Com. Wong:
. Discussed the fee schedule and said the high cost may be a deterrent to applying for a permit to
cut the tree. He questioned if having a lower fee would encourage them to follow the process.
Barry Coates:
. Said that in Saratoga, many times people will cut the tree down and pay the fine. The fines are
not large enough to be relative to the value of the home or their opinion of the value of the tree
being gone are not sufficient to prevent them from removing trees. He said he was not sure if
having a lower fee would encourage the people to apply for a permit to remove the tree.
. Provided a history of his background.
Vice Chair Giefer:
. Said she liked native trees because they thrive in the area, use less water, and produce less
pollen. She said she tries to rectify trees that have come before us both here and planning as
well as the DRC where they do landscape plan reviews; and is attempting to balance between
native species and/or problematic species in Cupertino. She asked for the arborist's opinion on
different species.
J ---/.2~
Cupertino Planning CommIssion
25
September 26, 2006
Barry Coates responded to Vice Chair Giefer's questions regarding a variety of trees:
. In response to Vice Chair Giefer's question about Washitonia Fan Palm trees, he said thatboth
Mexican and California fan palms come from very specific micro sites, they are always in a
desert and in an area and in a micro site that is wet. They are not a drought tolerant plant; they
always only appear in those locations; they would never appear in clay soil; or in an area that is
dry. You can say that about many plants, but if asking if they are appropriate here, he said you
would never see a palm growing naturally in this location.
e Deodora Cedar is native to the Himalayas. However, Deodora Cedar is velY drought tolerant, is
extremely long life. and very useful here.
G Most conifers will produce pollen which are the primary sources of people:s aliergens. People
see yellow acacia flowers and assume they are the cause of their allergens. A government
research project in Australia demonstrated that the acacias were not usually the cause of most
people's allergens; pine trees, cedars, cypress all are dominant.
ill Ash trees are problems; they are Evergreen Ash from Mexico and it is a huge tree, very brittle
and very difficult tree to prune. It is a nightmare for an arborist. They are fast and very
destructive of pavement. Some Ash trees are very useful but that one is a real problem.
. California Pepper is from Peru; in Australia it is called Australian Pepper; in South Africa it is
called the South African Pepper. It is not from California. Whether or not it is invasive,
depends on the climate. Near a water course, they do tend to reseed and they can become a
nuisance. Some places in Southern California, weather prohibitive; but they aren't a problem in
that respect.
. Madrones are a California native, but only in very specific areas. It is all through the Santa
Cruz mountains, but the largest Madrone in the world is in Oregon, not in California. They are
dying in the Santa Cruz mountains from a disease. It is not a tree you would plant and expect to
grow in your garden.
. Relative to affixing something to the tree to designate that it is a protected tree, he said in doing
tree surveys, a one-half inch nail is used because it goes only into the bark, not into the vascular
tissue. The tree grows around that and actually pushes it off eventually. What is done in most
botanical gardens is to use a longer nail with a spring on it, with the label on the outside of the
spring; the head of the nail holds the label on and then as the tree grows in diameter, it
compresses the spring and the label lasts for a much longer time, from 5 to 20 years depending
on the species of the tree.
. He explained the reasons for adding the Coast Redwood and Incense Cedar trees to the list,
because they are large native California trees, relative low maintenance and long life. The
Incense Cedar is also a native tree from the Sierras, and is a large, useful tree.
Chair Miller:
. Noted there was a recommendation from the city naturalist to include the .Western Sycamore,
the California Bay Laurel, the Black Cottonwood, the White Alder and the Box Elder Acer. He
asked the arborist for his opinion on adding those trees.
Barry Coates:
. He said he did not agree with the latter three, and noted they would be found only naturally
growing in streambed areas.
. He said that it is not very often that you encounter that type of situation when you have to make
a decision about preservation of trees, but they are all short lived; if you are going to preserve
trees, hat is normally done is to chose trees that are long lived so that the designation you have
given, helps contribute to a longer life city forest. The California Bay is a separate problem
because where you have California Bay going through the canopies of Coast Live Oaks or other
oaks, the Bay will eventually ruin the oak trees; it outgrows them and as it grows above their
canopy and begins killing the oak. Further, California Bay is the dominant supply of spores that
~ r/20
Cupertino Planning CommIssion
26
September 26, 2006
cause sudden oak death; so there are cases where Bay should be removed for the benefit of the
sun-ounding Oaks.
. The last recommendation is the Western Sycamore, which is one of the most valuable deciduous
native trees, and wherever there is a stream area or wet area, it will likely be the most important
tree you have. It should be preserved; however, it is so fast growing it is not a tree normally
preserved at a small diameter; it would almost be equivalent to a redwood in the growth rate and
you might wish to preserve that at a larger size, because small ones are very young.
Chail- N!!mer,.;
o Stated that the arborist recommended more stringent minimum tree size requirements of
between 6 and 8 inches; yet on the Coast Redwood and the Incense Cedar the proposal was for
12 to 15 inches. He asked for an explanation for reducing the size of the trees.
e In terms of criteria for putting a tree into this protected category; is it native or indigenous to the
area.
Barry Coates:
. Explained that it was a matter of how fast that species grows. One tree at 6 inches diameter
could be 50 years old; where a Coast Redwood of 6 inches diameter might be a year or two; a
12 inch Coast Redwood might be 6 to 10 years old. The attempt is to try to protect trees of
approximately the same age as each other. Once they reach some stage of maturity, it could be
protecting them.
61 If it is important to your skyline, if as you look down the street you see a few of these which rise
above the dominant trees, they deserve to be protected because that is what gives you the
skyline, and if there are native trees that are reasonably long lived, they probably should be
protected because they are native trees. He said he was quoting the logic behind those decisions
by most cities.
Chair Miller opened the public hearing.
Carol Bunn, resident:
. Said there was a Black Walnut tree on her property that was planted inadvertently and its
canopy is above her house. She asked if would be considered protected because of the canopy,
or because it is a good tree. It is causing some problems for her neighbor.
. She asked if the cost of applying for a permit goes into a fund that people in need could draw
from to get their pennits.
Ms. Wordell:
. Said the Black Walnut tree is not protected, the only way it would be protected is if in the
course of a subdivision or use permit, that particular tree was protected.
. She said it was wise to call the Planning Department to have them check to see if a specific tree
is protected even though it is not on the list of protected trees.
. Regarding the fees, the fees go into the general fund and they are not a resource.
Donald Anderson:
. No longer present at the meeting.
Syd Jacobson, Property Manager of St. Jude Church:
. Said he was opposed to the process for tree removal.
. Questioned why there were so many different classifications of trees.
. Said there was a 90 year old Deodora Cedar tree on the property that died. They were informed
they had to pay a $3,000 fee, which was reduced. He said he opposed the fee charged. He said
d. "/3c>
Cupertino Planning CommIssion
27
September 26, 2006
they also had a heritage tree on their property; a Coulter Pine that leans over at 18 degrees and
drops 5 pounds of pine cones. The arborist informed them that they would soon have to cut it
down. The arborist also suggested they rope off the parking lot in places where it is becoming
a danger.
. He said that the church has planted in excess of 100 trees on the property.
. There should be some specific guidelines when the tree is dangerous and removed, other than a
person's opinion.
@ Said he was not previously aware that the city had a staff arborist.
Ms. Wordell:
$ Clarified that the city arborist is called upon when someone applies to remove a tree or if
somebody is applying for a development and 'a tree assessment is needed. The city arborist is
not available for people to come out and look at their trees or to ask questions; the arborist's
services are related to a development application.
Robert Levy, Wilkinson Avenue:
. Reported that recently on a Friday afternoon about 4:45 p.m. the city tree in front of his home
dropped a large branch leaving part of it hanging and the remainder covering the parking strip
on the sidewalk. He said he was unable to contact any staff in the city and when he called the
Sheriffs non-emergency number, he was told that he was responsible for clearing the sidewalk
and the parking strip. On Monday he was able to reach a street tree maintenance group.
Because the Sheriff's Department informed him that he was responsible for the tree, he cut the
branch and put it in the street for the city to pick up on Monday.
. He said he had 8 trees on his property and went out and purchased a new blade for his chain
saw. He said that he did not know which of the trees on his property will be on the protected list
with the upcoming changes, and he did not want trees that he planted to grow and threaten the
safety of his family and home.
Louise Levy, Wilkinson Avenue:
. Said she did not see anything in the proposed ordinance that states which trees required a
permit.
. Said that the $3,000 fee for an application for a tree removal permit was exorbitant, and
resembled a fine for having cut down a tree rather than an application fee.
Gail Bower, resident:
. Said she understood it would apply to the city as well as residents; hence any city trees would
be a part of this program.
. She requested that where feasible and safe, that dead trees be kept for habitat purposes.
. She noted that in the proposed 2006-07 budget, the tree maintenance for the city has been
deferred for about 4 years, and recommended including maintenance by the city so that they are
not only being protected, but maintained so they don't have to be removed.
. Said she supported adding more trees to the protected tree list as it would add variety. She said
she was in favor of keeping all the currently proposed trees on the list also.
. The model ordinapce No. 10 states that the Community Development Director would be able to
deem a tree dead and allow removal, which appears to be a broad approval given to one person.
She suggested that an arborist's opinion be required in addition to the Director.
. Said she requested by email a heritage tree list with a map of their locations.
Ms. Honda stated that the list was available form the Planning Department.
d -131
Cupertino Planning CommIssion
28
September 26, 2006
Julia Tien, Cupertino Road:
. Referring to Mr. Coates' comment about looking at the viewscape of the city in terms of which
trees to keep, Olle item is to look at the density of a property's plantings. She pointed out that
Coast Live Oaks are very large trees and not too many can be planted on a property in the city.
. In addition to looking at the species and the size, consideration should be given to how many are
on the property in deciding which to remove.
James Welsh, Commercial Tree Care, San Jose:
(, Said the higl1 cost of a pemlit is a deterrent for honest people to come in and apply for a pemlit
for tree removal.
~ Said that San Jose, Sunnyvale and Mountain View did not have fees for tree removal and other
cities had low fees.
. He said there are dangerous trees that may fall and cause deaths of people.
. He said there needs to be consistency in the size of the trees and notification to neighbors needs
to be clarified and streamlined. Eucalyptus trees are a major problem; some cities will assist
with the permits just to get them removed.
. Relative to using the size of the tree to determine if it should be removed, he said the size of the
tree is determined more on the amount of water they need.
e Questioned the reason for a staff arborist. He said he had four certified arborists on his staff and
he felt that any certified arborist should be able to write an arborist report. .
Jennifer Griffin, Rancho Rinconada resident:
. Said one of the reasons Rancho Rinconada annexed to the city was for the protection of their
street trees, which are valuable to the neighborhood.
. Said she wanted to ensure that street trees are protected by the city; they are under a special
category and it may need to be explained to residents, exactly what a street tree is.
. Cupertino has always loved its trees and as a prominent city in the Bay Area, Cupertino should
continue to do everything possible to protect its urban and suburban forests. Trees provide
valuable canopy cover and make Cupertino a comfortable city for walking. Mature tree cover
allows city residents to feel they are in the country during their busy lives.
. She commended the city for building fences around trees to protect them during construction,
and said the city has done a good job of replanting their street trees and was assured that it will
continue.
. She said that posting notices on the trees that are going to be removed was important.
. She asked if there was a designation that any tree over a certain size is protected?
Jan Stoeckenius, Cupertino Road:
. Said that he and his wife sent an email with comments.
. Said they supported the concept of protecting the trees;
. He said they initially were concerned with the move down to six inches on Coast Live Oak,
since they had a large number of Coast Live Oak trees on their property, and they grow to six
inches quickly. (Chair Miller clarified that Coast Live Oak was 8 inches)
. Coast Live Oak trees grow quickly and he was concerned that there would be a large number
under the ordinance when they are not difficult to replace.
Chair Miller closed the public hearing.
Chair Miller and Com. Wong summarized the issues:
. Cost _ the issue of goal congruence; which is not to discourage people from filing an
application, but discourage cutting the trees down and coming in after the fact. Perhaps the fee
~ // 3;)
Cupertino Planning CommIssion
29
September 26, 2006
. should be lowered for the application, and increase the fee if they cut the tree down without a
permit.
. How to define when a tree is dangerous and needs to be removed.
. How to define what size of tree; heard several different approaches.
. List of trees to be added. (They should be indigenous and in some way they helped define the
skyline, but the others didn't make sense for a number ofi-easons)
. What is criteria for adding trees to the Heritage list (why 4 inches vs. 6 inches?)
€> Cities of Mountain View, Sunnyvale, and San Jose have no costs for permits for tree application
(What is their cost recovery)
10 What is the rationale for the different fees? What is the breakdown of fees.
e How was the replacement plan criteria determined.
. What is the cutoff point for fines; when does it become excessive?
. Any other fees involved, such as fees for arborist examining the tree?
Com. Chien:
. Said he felt it was unreasonable that the church had to pay a $3,000 application fee to remove
the trees.
. He commended the fine work done and said more is to be done, with having it in writing so that
the residents have a better understanding.
Vice Chair Giefer:
. Asked for clarification of "Heritage" tree vs. "Protected" tree
Ms. Murray:
. Clarified that the palm trees on Palm Avenue were heritage trees, although palm trees are not a
protected species.
. The heritage trees are specific trees that have some historical value to the city and does not
relate to its particular species.
. She said that a specific oak tree could be a heritage tree if it is designated.
Vice Chair Giefer:
. Said she would like to see what is not included, because the landscape trees were discussed and
she was not certain she agreed with the list. The tree list needs to be expanded, with the
California Pepper tree added, as well as other trees. The audience had questions about street
trees also. It needs to be stated what is covered and what is not.
. Said one of her goals for the tree policy is to have an incentive for good behavior; and penalize
people for not being out of compliance. She said that a tree removal permit fee of $10 and a
retroactive tree removal permit $9,000 may be appropriate. Other cities are imposing fines and
court cost recovery and she said she agreed with Mr. Coates that the way to get people to stand
up and pay attention is if people get caught and the city imposes fines on them. She said that
providing education and adjusting the fees is what it will take for people to stop hiring itinerant
tree cutters because they don't want to pay the fee and they can pay $200 to cut the tree down.
. She said there was more work to be accomplished. She expressed concern about the canopy
equation because of crowding.
Mr. Coates:
. Said that the Big Leaf Maple should be included on the list since it is a useful tree, long lived
and is indigenous to the immediate area.
Com. Wong:
. Said he wanted to mow the criteria used for adding trees to the heritage and protected list; and
;) -/33
Cupertino Planning CommIssion
30
September 26, 2006
was concerned that if too many are added to the list, it may become cumbersome to enforce. He
said they should be careful when adding anything to the list.
Motion: Motion by Com. Wong, second by Vice Chair Giefer, to continne Application
MCA-2006-02 to the October 24, 2006 Planning Commission meeting.
(Vote: 4-0-0; Com. Saadati absent)
OLD BUSINESS:
None
NEW BUSINESS:
None
REPORT OF'J:'~ PLANNING COMMISSIO:(: .'
Environmental R'eview Committee:
. Vice Chair Giete, reported that ValJco Sho ping Center requested approval for the 4. floor
garage exceeding 3'2Jeet; the ERC felt it/as a mitigated impact and it was agendized for the
Planning Commissiort", I
" /
Housin2: Commission: \, /
. Meeting was cancelled due fo\lack Jfbusiness.
Mavor's Monthlv Meetin2: With 'dtmmissioners:
I '
. No report. I \.
/ \\
Economic Development Committee: \
. Com. Chien reported thay1he North Vallcp study area was discussed.
. Interviews are being cQhducted with busiri'e~ses leaving Cupertino to talk about conditions they
experienced while doj-hg business in CupertiuQ.
. Discussed upcomini projects. \\
. Interviews havellen taking place for the Redev~'Q~~ent Manager.
\ '
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT
. No ~iOIf report. '\
ADJO~NT: The meeting was adjourned to~he October 10, 2006 Planning
/ Commission meeting at 6:45 p.m. \
, \
SUb.id by: \
/ Elizabeth A. Ellis, Recording Secretary
I
c2 /131{
CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014
DEP ARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM
Application:
Applicant:
Property O'lNner:
Property Location:
MCA-2006-02
City of Cupertino
Various
Citywide
Agenda Date: September 26, 2006
Summary: Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen
Trees)
RECOMMENDATION
Staff recommends that the Planning Commission discuss and provide direction on
Chapter 14.18 (Heritage and Specimen Trees) of the Cupertino Municipal Code and
continue this item to the October 24, 2006 meeting. The Planning Commission is
requested to provide specific suggestions on possible amendments to include in the
ordinance.
BACKGROUND
On August 15, 2006, the City Council conducted a preliminary study session on the
City's Heritage and Specimen Trees Ordinance _ and provided comments to the
Planning Commission to address additional tree protection measures for possible
incorporation into the ordinance. The Council reviewed a model tree protection
ordinance that was drafted to stimulate discussion of possible amendments to the
ordinance.
DISCUSSION
The City Council provided the following comments to the Planning Commission based
on the following topics:
Tree Protection
1. Confer with the City Arborist and City Naturalist for recommendations of other
trees to be included within the protected tree list.
2. Review the current protected tree list to decide if existing trees on the list should
be retained.
3. Exempt unsafe and dead trees from the ordinance, but provide direction on
how to determine if a tree is unsafe or dead (e.g., consider involving the City
Arborist to make the determination).
4. Address circumstances that may lead to the demise of protected trees (e.g.,
whether a sick tree is considered an unsafe tree and whether neglect by a
.property owner may lead to the demise of the tree).
rJ ---/35
MCA"2006-02 - Heritage a. ,Jecimen Trees, Ch. 14.18
September 26, 2006
Page 2
Approval Authority
1. Allow tree removal permit approvals at staff level, unless a retroactive tree
removal permit is requested.
2. Have Planning Commission review and determine retroactive tree removal
permit applications.
Penalties
1. Require more stringent penalties for tree removals without a permit.
2. Consider h'ee replacement and fines for removals without a permit.
3. Compare penalties of other surrounding cities.
4. Consider increasing penalties for subsequent offenses.
5. Allow the City Council to review and determine retroactive tree removal permit
applications with the ability to place additional conditions for the illegal tree
removal.
6. Allow the City Council to modify the penalty on an appeal.
7. Hold all pending applications on a property until a retroactive tree removal
permit is obtained for illegal tree removals.
8. Consider the location, size and replacement time frames when considering
replacement trees.
Noticing
1. Consider maintaining a 300-foot noticing for tree removal permit applications.
2. Consider placing notices on trees for tree removal permit applications.
Solar Panels
1. Request that no amendments be made on this issue.
Other Council comments include recommendations to consider whether the ordinance
should provide tree protection measures during construction and the possibility of
transplanting trees from mature landscaped areas to tree deficient areas in the City.
Staff has received input from both the City Arborist and City Naturalist regarding their
recommendations for additional trees to be considered for the protected tree list.
Recommendations for Additional Protected Trees
The City Arborist and City Naturalist recommend that the City consider adding the
following trees on the protected tree list:
!:,tP:gp~~~tf~;Q~H:' '4):~(~i.f~~~1g;Qro~Wfg1:"~JB":'."~~~."S~i' ;lR~~Q~@.nQ.~4'iW':);;
> 15 inches BC
> 12 inches BC
4 inches or eater BB
10 inches or eater BB
Coast Redwood
Incense Cedar
Western S camore
California Ba Laurel
;)/I3(p
MCA-2006-02 - Heritage a. pecimen Trees, Ch. 14.18
September 26, 2006
Page 3
S ecies
Black Cottonwood
, White Alder
Box Elder Acer
Inches at DBH 4 1jdeet frOlu nafural ~rade)
10 inches or eater BB
10 inches or reater BB
10 inches or eater BB
BC = Barrie Coate, City Arborist
BB = Barbara Banfield, City Naturalist
The City Arborist also provided more stringent minimum tree size requirements for
the following Oak trees:
'Ihcllesa.t,bBH 41/ifeetfromnafural'
> 8 inches
> 8 inches
> 6 inches
> 6 inches
> 6 inches
. Seeies '.
Coast Live Oak
Valle Oak
Blue Oak
Black Oak
Can on Live Oak
Penalties in Other Cities
The City Council also asked the Planning Commission to review and compare
penalties imposed by other surrounding cities for trees that have been removed
without a tree removal permit approval. The following is a list of penalties imposed
by the cities of Cupertino, Campbell, Los Gatos, Los Altos, Saratoga, Morgan Hill and
Palo Alto.
Cupertino X
Campbell
Los Gatos X X X X
Los Altos X
Saratoga X
Morgan
Hill
Palo Alto X
X (Temp X
moratorium)
J /1 31
?ecimen Trees, Ch. 14.18
MCA-2006-02 - Heritage a.
September 26, 2006
Page 4
, Cupertino
Camp bell
Los Gatos
Los Altos
Saratoga
Morgan Hill
Palo Alto
Civil Action for
Unlawfully'.
RemovedTrees
Not to exceed
$5,OOOjvio1ation,
unless replacement
value is greater.
Where town prevails
in court, violator
shall pay all costs for
trial preparation &
fees.
Not to exceed
$5,000 j violation,
unless replacement
value is greater.
City Council may
commence action or
proceedings for
abatement that may
involve courts.
Not to exceed
$5,000 j violation,
unless replacement
value is greater.
Where City prevails
in court, violator
shall pay all costs for
trial preparation &
fees.
.Tree Replacement.
. RequireIllents.:. ......
2x replacement ratio
for single-family res.
4x replacement ratio
for all other
properties.
Replacement tree(s)
with equal aesthetic
quality of
unlawfully removed
tree(s).
Replacement tree for
each tree removed.
Replacement trees in
accordance with
City tree manual.
Replacement ratio
shall be greater for
unlawfully removed
trees.
Cash payment to
tree fund, or
combination of tree
replacement & cash
payment based on
appraisal value of
removed trees.
Cash payment to
tree fund or
replacement tree(s),
based on appraisal
value of removed
trees.
Cash payment to
tree fund, or
combination of tree
replacement & cash
payment based on
appraisal value of
removed trees.
Cash payment to
tree fund, or
combination of tree
replacement & cash
payment based on
appraisal value of
removed trees.
. Mainteriance.. .....
. Agreements:'
R~quired for?,:.: .;
Replace:ment:
;T~ee's .:Id" ""
Maintenance
agreement for lengUh
of time as
determined by the
Town.
Maintenance bond
may be required.
Maintenance
agreement for a
minimum of 5 years.
:2----13'6
MCA-2006-02 - Heritage a _pecimen Trees, Ch. 14.18
September 26, 2006
Page 5
Public Comments
At the August 15th City Council meeting, the Council heard from three members of the
public. One person requested that consideration be given to remove trees when they
block use of solar energy panels. Another person requested that PG&E use special
insulated wires that would reduce the amount of pruning of trees. One member of the
public recOJmnended support for protection of trees, including during construction.
The City also received two emails. One email requests that redwoods, sycamores and
black cottonwood trees be considered for placement on the protected tree list. The
other email expressed the opinion that tree removal fees are excessive.
Model Ordinance
As previously mentioned, the City Council reviewed a model ordinance that was
drafted to stimulate discussion. The draft model ordinance includes the following
reVISIons:
1. The title of the ordinance has been amended to read "Protected Trees."
2. All references to "specimen" trees have been changed to "protected" trees for
clearer identification.
3. Section 14.18.035 has been added to clearly list the protected trees.
4. Section 14.18.025 has been added to clearly state it is unlawful to remove,
damage or kill any protected tree in the City.
5. Sections 14.18.150, 14.18.170 & 14.18.180 have been renamed and address the
application approval authority, application requirements, and review an.d
determination processes for tree removal permits.
6. Repetitive sections have been removed.
7. Section 14.18.175 has been added to address noticing requirements.
8. A definition for "Development application" has been added.
9. Section 14.18.070 addresses recordation requirements for "protected" trees.
10. Section 14.18.140 has been amended to allow the Community Development
Director, or any member of the sheriff or fire department, to deem a protected
tree unsafe and allow removal of the tree. This section also allows the
Community Development Director to deem a tree dead and allow removal of
the tree.
11. Section 14.18.185 has been added to address tree replacement requirements.
12. Expanded definition has been added for "Tree removal."
13. Findings have been added to Section 14.18.180(A)(3) that allow for the removal
of trees where protected tree(s) are a detriment to the subject property due to
overplanting or overcrowding of trees on a site and whose removal would not
result in a density of tree coverage inconsistent with the neighborhood. This
would essentially allow a thinning out of protected trees to allow the trees to
better thrive and encourage appropriate canopy coverage on site. An example is
the recent retroactive tree removal application for the removal of six coast
redwood trees that were planted in small and narrow planter areas between
0}--J3Q
MCA-2006-02 - Heritage a _pecimen Trees, Ch. 14.18
September 26, 2006
Page 6
townhouse units at the Joseph Circle townhouse complex off of Vista Drive. In
this particular case, the trees were overgrown and crowding into a planter area
causing damage to the adjacent townhouse walls and fence. Also, overcrowding
could affect adjacent properties where tree canopies lTIay encroach onto
neighboring properties, thereby affecting and possibly prohibiting a
homeowner's use of his/her property to plant in a yard without sufficient
sunlight.
Prepared by:
Approved by:
Aki Honda, Senior Planner ~
Steve Piasecki, Director of Community Developmenl\~-c..---
Attachments
Exhibit A - Draft Model Resolution
Exhibit 1;3 -- Emails from residents
Exhibit C -- City Council Minutes of August 15, 2006
Exhibit D- Council Report of August 15, 2006, including all attachments
G:\P1anning\PDREPORT\pcMCAreports\ Tree Ordinance, Sept 26 PC Mtg.doc
d-I~
MCA-2006-02
CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014
MODEL RESOLUTION
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
RECOMMENDING IIIAT THE CITY COUJ"lCJL A]\;fEND CIT!\PTER 1418 OF Tl~rF,
CUPERTINO MUNICIPAL CODE RELATED TO PROTECTED TREES
-----------------------------------------------------------
-----------------------------------------------------------
Recommendation of approval is based on Exhibit A.
-----------------------------------------------------------
-----------------------------------------------------------
PASSED AND ADOPTED this 26th day August 2006 at a Regular Meeting of the Planning
Commission of the City of Cupertino, State of California, by the following roll call vote:
AYES:
NOES:
ABST AIN:
ABSENT:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
ATTEST:
APPROVED:
Ciddy Wordell
City Planner
Marty Miller, Chairperson
Planning Commission
G :\Plann ing\PD R EPO RT\RES\2006\MCA- 2006-02, Trees .doc
d. -/4 I
Exhibit A
CHAPTER 14.18: ME-P~-P-E~
PROTECTED TREES
Section
14.18.010 Purpose.
14.18.020 Definitions.
14.18.025 Actions Prohibited.
14.18.030 Retention promoted.
14.18.035 Protected trees.
14.18.040 Designation.
14.18.050 Heritage tree list.
14.18.060 Plan of protection.
14.18.070 Recordation.
14.18.080 Identification tag.
14.18.000 ^pplication to rcmo'/c.
14.18.100 Notice lisno accompany opplicotioA-:-
14.18.110 Appeal
14.18.120 Pcrmit required for removal
1
;2 --I JfJ.
14.18.130 Enforcing authority.
14.18.140 Exemptions.
14.18.150 Application and Approval Authority for Tree Removal permit.
~\4.'1<:;-160 Director to inspect
14.18.170 Hevtevv-ef-a.A.pplication Requirements.
14.18.175 Noticing
14.18.180 Review and determination of application s-t-afT€l.o~.
14.18.185 Tree Replacement.
14.18.190 Protection during conservation.
14.18.200 Protection plan before permit granted.
14.18.210 ^ppl:cant to guarantee protection.
14.18.220 Notice of action on permit-Appeal.
14.18.230 Penalty.
14.18.010 Purpose.
, In enacting this chapter, the City of Cupertino recognizes the substantial
economic, environmental and aesthetic importance of its tree population. The
City finds that the preservation of specimen protected and heritage trees on
private and public property, and the protection of all trees during construction, is
necessary for the best interests of the City and of the citizens and public thereof,
in order to:
2
~ /14-3
A. Protect property values;
B. Assure the continuance of quality development;
C. Protect aesthetic and scenic beauty;
D. .Assist in the absorption of rain waters, thereby preventing erosion of top
soil, protecting against flood hazards and the risk of landslides;
E. Counteract air pollutants by protecting the known capacity of trees to
produce pure oxygen from carbon dioxide;
F. Maintain the climatic balance (e.g., provide shade);
G. Help decrease potential damage from wind velocities;.
H. Preserve protected Protect spccimen and hcritage 001\ trees. For the
above reasons, the City finds it is in the public interest, convenience and
necessity to enact regulations controlling the care and removal of protected
specimen ol1€HTeffia~ trees within the City in order to retain as many trees as
possible, consistent with the individual rights to develop, maintain and enjoy
private and public property to the fullest possible extent.
Protected Specimen and heritage trees are considered a valuable asset to the
community. The protection of such trees in all zoning districts including
residential zones is intended to preserve this valuable asset. (Ord. 1573, S 2,
1991; Ord. 1543, S 2,1991)
14.18.020 Definitions.
Unless otherwise stated, the following definitions pertain to this chapter.
A. "City" means the City of Cupertino situated in the County of Santa Clara,
California.
3
c9 -/ifJf
~ ---&-"Developed residential" means any legallotof record, zoned
single-family, duplex, agricultural residential and residential hillside, with
any structure (principal or accessory) constructed thereon.
C. "Development application" means an application for land alteration or
Qevelopment, including but not limited to subdivision of property,
r c: :~~ t,) !:-.{ I
:~~
, tvvo-stOi'/ residential pelTnit,
- .---..-------- ---- --...- -----.. -- -------------...---------..-------- -----
!ninor residential permit, planned unit developrnent, \r'ariance, and US~
permit.
DG. "Heritage tree" means any tree or grove of trees which, because of
factors including, but not limited to, its historic value, unique quality, girth, height
or species, has been found by the Planning Commission AreA-itccturol and Site
Approval Committee to have a special significance to the community.
D. "001< tree" ::;hall includo all trees of 001< genus, including, but not !:I'n+t-e-Ei
to, the Volley Oal( (Quercu8 lobata) end California Li'Je 001<. (Quercu::; ogri70lio).
E. "Owner" shall include the legal owner of real property within the City, and
any lessee of such owner.
F.. "Person" shall include an individual, a firm, an association, a corporation,
a co-partnership, and the lessees, trustees, receivers, agents, servants and
employees of any such person.
G. "Private property" shall include all property not owned by the City or any
other public agency.
H. "Public property" includes all property owned by the City or any other
public agency.
I. "Protected Specimen tree" means any class of tree specified in Section
14.18.035.Emy of the following:
4
J- - 145
1. l\ tree-Elescribcd on--tf:re-{able below:-
Meawrcment 8ffitt1€-+r-HA-k Mtl-!t+-=FR..-LA-k
Frem Naturol Diameter! Diameter!
Species GfaOO C i rcu nrfereA-6e Gifetlmference
,-1\1 ",;. ',',
ic;,t Ie ':
00.1< trees 4-1-+2-' ~t24q ~@~
Colifornio ~ 10" (31") 20" (63")
Buckeye
Big Leaf Maple 4--i-R-' 12" (38") 25" (70")
Noonati''/e Trees:
Deodar CcdoT 4-i-f2:! 12" (38") 25" (70")
Blue /\tlos ~ 12" (38") 25" (70")
Cedor
2. /\ tree required to be protected os 0 port of a zoning, tentative mop, use
permit, or privacy protection requirement in on R 1 zoning district.
J. "Tree removal" means any of the following: (1) Complete removal, such
as cutting to the ground or extraction, of a protected tree or (2) Severe pruning,
which means the removal of more than one-fourth of the functioning leaf and
stem area of a tree in any twelve-month period of a protected tree the destruction
(in Q t'vvelve month period) of hventy five percent or more, as determined by the
Community Development Director, of any heritage or specimen trec by c~
retarding, girdling or applying chemicals. (Ord. 1886, (part), 2001; Ord. 1835,
(part), 1999; Ord. 1810, (part), 1999; Ord. 1715, (part), 1996; Ord. 1573, S 3,
1991; Ord. 1543, S 3,1991)
14.18.25 Actions Prohibited
5
~/I~
A. It is unlawful to remove or kiil any protected tree; and
B. It is unlawful to remove any protected tree in any zoning district without
first obtaining a tree removal permit.
14.18.030 Retention JP'romote(L
H-Bri~og-e---afK!-Protected S!3ccimcn trees are considered an asset to the
community and the pride of ownership and retention of these species shall be
promoted. The Director of Community Development shall conduct an annual
review of the status of heritage trees and report the findings to the Planning
Commission. (Ord. 1715, (part), 1996; Ord. 1543,94.1,1991)
14.18.035 Protected Trees.
Except as otherwise provided in Section 14.18.140, Exemptions, the
following trees shall not be removed from private property without first obtaining a
tree removal permit:
A Heritage trees in all zoning districts.
B. All trees of the following species:
Measurement Single-Trunk Multi-Trunk
From Natural Diameter/ Diameter/
Species Grade Circumference Circumference
Native Trees:
Oak trees 4-1/2' 10" (31") 20" (63")
-
California 4-1/2' 10" (31") 20" (63")
--.
Buckeye
6
:2 ,/.{1
Big Leaf Maple 4-1/2' 12" (38") 25" (79")
-
Nonnative Trees:
Deodar Cedar 4-1/2' 12" (38") 25" (79")
-
Blue Atlas 4-1/2' l~'~l~) ~?~JZ2J
____.... __.~_______._n._ ---"------
(~:edar I
"-- ,
C. Any tree required to be planted or retained as part of an approved
development application, building permit, tree removal permit or code
enforcement action in all zoning districts.
D. Approved privacy protection planting in R-1 zoning districts.
14.18.040 Designation.
The Planning Commission, may, by resolution, designate a tree or grove of
trees as a heritage tree(s).
Prior to adoption of such a resolution, not less than ten days written notice
shall be delivered to the owner. If the owner of the property protests the
designation.!. an appeal can be initiated. (Ord. 1715, (part), 1996; Ord. 1630,
(part), 1993; Ord. 1543,94.2,1991)
14.18.050 Heritage Tree List.
A heritage tree list shall be created and amended by resolution. The list shall
include the reason for designation, tree circumference, species name, common
name, location and heritage tree number. (Ord. 1543,94.3, 1991)
14.18.060 Plan of Protection.
7
d- //4 '6
A. The Planning 'Commission shall consider a plan of protection for
protected trees developed by the Community Development Department or a City-
retained certified arborist. The protection plan shall include information for
correct pruning, maintenance and fertilization methods.
B, It shall be the property owner(s) responsibility to protect the tree. -=r:h-e
j3+a-A~S-A-a-H--te-pf0viB€'tl-fBf-A~~.-/-,9 8r:--l:X'3s-a-H=rtsfl'1 ef--(~+S 2rs'-tror:-irt-CfEl e-r:- to-o b te ~ir'-lll (co
retention objection.
C. Privacy protection planting in R-1 zoning districts shall be maintained.
Landscape planting maintenance includes irrigation, fertilization and pruning as
necessary to yield a growth rate expected for a particular species. Where
privacy protection planting dies it must be replaced within thirty days with the
location, size and species described in Ordinance No. 1799 (privacy protection)
and its appendix. The affected property owner, with privacy protection planting
on his/her their own lot, is ftet required to maintain the required planting and shall
be required to comply with Section 14.18.070. (Ord. 1810, (part), 1999; Ord.
1630, (part), 1993; Ord. 1543, ~~. 4.4, 4.5, 1991)
14.18.070 Recordation.
All protected Heritage and specimen trees required to be retained as part of a
development application under Section 14.8 1.020 12 14.18.035, except for trees
on public property, shall have retention information placed on the property deed
via a conservation easement in favor of the City, private covenant, or other
method as deemed appropriate 'by the Director. The recordation shall be
completed by the property owner prior to final map or building permit issuance, or
at a time as designated by the Director of Community Development when not
associated with a final map or building permit issuance. at the time of use permit,
i:oning, tentative mop or initial/new building permit is::;uofi88. (Ord. 1573, ~ 4.6,
1991; Ord. 1543, ~ 4.6,1991)
8
J- ' I J-f11
14.18.080 Identification Tag.
Heritage trees shall have on them an identification tag, purchased and placed
by the City, inscribed with the following information:
CITY OF CUPERTINO
HERITAGE TREE NO.
Please do not prune or cut
before contacting the City.
(Ord. 1543, ~ 4.7,1991)
14.18.090 ;\pplieation fa Reme-v-e. (There are 3 sections that discuss the tree
removal application/permit process....rve eliminated the first two (14.18.090 and
14.18.120) and incorporated this information into one section. 14.18.150)
If an application for heritage tree removal i~ ~ubmitted, the request sholl be
fOlYmrded to the Plonning Commission for revie'N ond approval. It i~ tRe
opplicont'::; re~pon::;ibility to provide ~upporting document::; aJ requested by ~taff
or the Planning Commi~sion. (Ord. 130, (port), 1003; Ord. 1543, ~ 4.8, 1-9941
14.18.100 Notie.e List to tLccompany ""1pplication.
The applicant shall provide vv'ith the opplication a list of names of 011 perseflB
owning and/or occupying real propel}:y located v'Jithin three hundred feet of the
property involved in the application. VVheFe 0 property is a multifamily dwelling
'Nith more than four units, the nome of the building manager \vill be 3upplied on
the list. Notico of the Planning Commi~sion heorin~ill be mailed to the names
on the list. (Ord. 1630, (part), 1 a03; Ord. 1543, S4.a, 1 a01)
1-4d-&d-:W-A-wea-h
9
J ,(SO
----AA-af;}j3€B-I-eHRe P!a nft~_GefHfP,+SStefPAeej.s1Br~e-stIBmit:teEHe--#1e
Cit" f""ou""cil in e:!"'c of +h~ Cit" 0\"rl' '''it~in fi"e '''''rl';~Flg dClY~ of th~ d~~i'~ion ~l.~
y '-' '" u. ' ..... y v v ,'IV' v iY,-, l'dT ,:), '-' vv;:' . ~
trce sholl--e~~-t-iHAe--af7l3eBt-pr-ec-ess-hDs becA-6ooe1tlElcd. (Ord. 1638,-
f\3aA:~ ~99'" 8F8 ~e+3 ~ 4. -19 -1ngq' (\'"a -1~A" ~4 -11i ~liliq~
, L, 0, . , .1 ~ tV' ,'-Jf. .........v, .IV, ,v...;
\"--~-1, ;; ,.
C*een+ ~s 13;:"''' 'iElea ip, 8eet;8A -14 -1 g 0149 A8 S~"S8'4 ~A8" ,.j;'-""~+l" M ;~El;'-~et'"
1_ I.HU VV , 1 1.1.' " ,vi 1 "'. II'-II''-'VCYV' II. "V ry
femO\{e or couse 4e--\:;e-femo'./ed any specimen or---Reritcge tree os herein dcf-it-l-eB,
'Nithin thc City limits, 'Nithout first obt<Jining a permit to do so in accordance with
the procedur-es-set forth i-R-this ch<Jpter. (Old. 1543, S 5.1, 1 Q(1)
14.18.130 Enforcing Authority.
The Director of Community Development, or his/her authorized
representative, shall be charged with the enforcement of this chapter. (Ord.
1543, ~ 6.1, 1991)
14.18.140 Exemptions.
The following removals do not require approval of a tree removal permitThts
chaptcr docs not apply to the follmving:
A. Removal of a protected tree in case of emergency caused by the
hazardous or dangerous condition of a tree, requiring immediate action for the
safety of life or property (e.g., a tree about to topple onto a principle dwelling due
to heavy wind velocities, a tree deemed unsafe, or a tree having the potential to
damage existing or proposed essential structures), upon order of the Director of
Community Development, or any member of the sheriff or fire department.
/' H<>weve',,- 6s~Pc.~"gt=npJ3liCIJI~n for lree rcmovol muot be filed wilhin five\"
~ woridng do;';-o;dOGcribcdin Scclions 14.18.150 14.18.170 oflhis chopler. /
~
I(} 0 &2k!-. h 4- ~j?1' /[~
o~. I.... t; .c.. (,l:.
10
;2 -151
B. Dead trees, in the opinion of the Director of Community Development..
R€m~etae€H:J-s-,:fftHt-l3eafi-~tfee&;- ,-
- <-----
--C. -AR--a-p-j3ffiV-a-\-fef-tAe-fefftBV-et--ef-aHY trce--fJf-BffieEI-By \/ i rtu e 0 f--a-z.-.:eAtA-~,
ts'B-Fit'fffrtt,-\fBfiB r, Cc-;-JCB'H-i:a+t',;',-'i-Fb!::j ;-Bf-F4e-H
-8fl-pr-evat:-
D. R e FA-e-V-a+-e~-tn - J d evB+e19€d res ideffita-I sin 9 I e-fami+y,---res1-cieR-t-i-a\
duplex, agr:culturol residential and residential hillside zoning district, except
fTeffi~s!3ecimen or ff-€8-s-f)lanted to co~ith privaey protection purSUORt
to Chapter 1 Q.28 (Single FomBy Residential (R 1) Zones) excc-F't-thes~B-AteB
EJn the affected property owners lot.
E. Public utility,actions, under the jurisdiction of the Public Utilities
Commission of the State of California; as may be necessary to comply with their
safety regulations, or to maintain the safe operation of their facilities. (Ord. 1835,
(part), 1999; Ord. 1715, (part), 1996; Ord, 1630, (part), 1993; Ord. 1543, ~7.1,
1991 )
14.18.150 Application and Approval Authority for Tree Removal Permit.
A. ,^,. No person shall directly or indirectly remove or cause to be
removed any protected tree without first obtaining a tree removal permit,
unless such tree removal is exempt per Section 14.18.140. Applications
for a tree removal permit specimen or heritage trGe remo'v'al permits shall
be filed with the Department of Community Development on forms
prescribed by the Director of Community Development and shall state
the number and location of the trees to be removed, and the reason for
removal of each.
11
d. ~/5J.
B. B. Applications for protected fteffi~e tree removal shall be referred
to the Planning Commission for final review and determination appro'.';)\
in accordance with Sectioiis 14.18.09Gr-4448.100 DnEl444-~-8
Section 14.18.220 and Chapter 19.1247. The Planning Commission may
~pprove2._coflditionally approve, or deny the application for a tree removal.
l\
((-:'(nent1]Y:O~/ be n3ctuired _:~! conjunctk)n
with the tree removal permit. The applicable tree removal permit fee__sh~ll
apply. R-e~uests shall be re-viBWe-El pursua-RH~'
C. When a development application is under consideration by the approval
authority concerning the same property as the affected tree removal
permit application, the determination on the tree removal permit shall be
made concurrently by the approval authority.-(Ord. 1630, (part), 1993;
Ord. 1573,98.1 (part), 1991; Ord. 1543,98.1 (part), 1991)
14.18.160 Director to Inspect.
Upon receipt of an application for removal of a protected specimen tree, the
Director of Community Development or his/her authorized representative will,
within fourteen days, inspect the premises and evaluate the request pursuant to
Section 14.18.180 of this chapter. Priority of inspection shall be given to those
requests based on hazard or danger of disease. The Director of Community
Development may refer any such application to another department or to the
Planning Commission or an appropriate committee of the City for a report and
recommendation. Where appropriate, the Director of Community Development
may also require the applicant, at his own expense, to furnish a report from a
staff-approved arborist, certified by the International SoCiety of Arboriculture.
~-s---for tree removal may be granted, ecnied, or granted wtt:A conditioR-S-7-
The Director of Community Development may, 03 0 condition of granting;) permit
far removal of a specimen tree, require the applicant to---fe-i3taAt or re131uce a t:-cc
\.vith more than one tree '",hen jU:Jtified to replace lost tree canopy. (Ord.
1573,98.1 (part), 1991; Ord. 1543,98.1 (part), 1991)
12
J;'(f33
14.18.170 ~Application Requirements.
A request for removal of any heritage or protected spe-effi'Teft tree shall include
the following:
A. Application information. Application for a tree removal permit
~~;h3Ii C1\/2d8bi[~ "frorn and 'f!l(~d \!vith thE:~ C:cil"T1rntJn
- - - - -- - -- --~ - - -- ------.---.- -'-
Development Department and shall contain the following
information, unless waived by the Director of Community
Development:
1. A written explanation of why the tree(s) should be removed;
2. Photograph(s) of the tree(s);
3. An arborist report from a staff-approved arborist, certified by the
International Society of Arboriculture, when required by the
Director of Community Development;
4. Signature of the property owner and homeowner's association
(when applicable) with proof of a vote of the homeowner's
association.
5. Replanting plan
6. Other information deemed necessary by the Director of
Community Development to evaluate the tree removal request;
7. Permit fee, where applicable;
8. Tree survey plan indicating the number, location(s), variety and
size (measured four and a half feet above grade) of tree(s) to be
removed.
protcctcd by 0 condition of appro'Jal as:Jociated with 0 zoning,
tentati\/c map, use pcrmit, variance and orchitccturnl and sito
approval application may be approvcd by thc Dircctor of
Community Development if decmcd unsafc or diseo:Jed or con
causc potential damoge to existing or propo:Jed ossential
structures. The Director of Community Devclopment may olso
13
~ ---/sLf
feEttiire the ~!7l3HBaffi;-a.t-A-is-ewA-€*Pen~e, to-t\::lmi-sh n rCf3ili-H-r-effl-a
stoff approved orborist, eert:fied by the International Society of
AOOri eu ltu r e. If re rr. 0\1 a 1-is-r-eEl-i:l€-SffiEl-f-er-a-r-ry--et-A-ef-fea-sB-fl-;-tA-e
~eation shall be referred to the Planning CeffifAission-w,'=Hffi
originated the condition. Notice of any public hearing under thi~
4-9 i i e ePAi~ rer1=----.LgvEl 1 ~~.-t\ -1909-;-O,-d...~_7-1I.:: I,~ ,"'-i.
. l ~....... o:\:J~ \ I. '=" \ P U I ...), I V , c::rrcr.-- t -r----r-0...,-tp-a-rC),-
4-9%;-arn€ndcd d uf-ffi~~93 su pf7l~f-€b-153G,tj3aftt-+99-3~
Ord. 1543,~8.1 (part), 1 GD1)
14.18.175 Notice and Posting
Notice of any public hearing under this chapter shall be given in the same
manner as provided in Chapter 19.124 ofthe CupeliinoMunicipal Code.
14.18.180 Review and Determination of Application Standards.
~_ The approval authority shall approve a tree removal permit only after
making at least one of the following findings:Eoch reque~t for tree removal sA-a+1
be evaluated bascd upon the ::;tandards listed under sub~eetjon3 ^ and B below.
Approyal of a permit to remove a specimen or heritage tree may be granted if
one or both of the standard::; is met.
1. A-- That the tree or trees are irreversibly diseased, are in
danger of falling, can cause potential damage to existing or proposed essential
structures, or interferes with private on-site utility services and cannot be
controlled or remedied through reasonable relocation or modification of the
structure or utility services;
2. B. That the location of the trees restricts the economic
enjoyment of the property by severely limiting the use of property in a manner not
14
;2 155
typically experienced by owners of similarly zoned and situated property, and the
applicant has demonstrated to the satisfaction of th~ approval authority that there
are no reasonable alternatives to preserve the tree(s).
and carinot be adequately ;::;upPolied accorc!inQ to qood urban forestry practices
__^___.__ ____,_____ ____'___ .______ __ _ m.,__. .n..______.__ _' _n" _______n -..,'.-------- --- - , --- ---........----. --.. --------..--.....-..--------- ---- ----.--..--.---------.--
3. That the protected tree(s) are a detriment to the subject property
due to the overplanting or overcrowding of trees on the subject property.
B. The approval authority may refer the application to another
department or commission for a report and recommendation.
C. The approval authority shall either approve, conditionally
approve or deny the application.
D. The approval authority may require a tree replacement
requirement in conjunction with a tree removal permit. (Ord.
1573, S 9.1,1991; Ord. 1543,S 9.1,1991)
Section 14.18.185 Tree Replacement
A. The approval authority may impose the following replacement
standards for approval of each tree to be removed in conjunction with an
approved tree removal permit, unless deemed unnecessary by the
approval authority:
1. Replacement trees, of a species and size as designated by the
approval authority and consistent with the replacement value of
each tree to be removed using the most recent edition of the
Guide for Plant Appraisal, published by the Council of Tree and
Landscape Appraisers, shall be planted on the subject property
on which the tree(s) are to be removed in the location(s) as
designated by the approval authority. Table A may be used as a
basis for this requirement. The person requesting the tree
15
J /1 r:k
removal permit shall pay the cost of purchasing and planting the
replacement trees.
a. If a tree cannot be reasonably planted on the subject
property, the value of the removed tree(s) shall be paid to
the City's tree fund (will we be establishing this???) to:
;. {\dd or r[3plC1c~_trge~; on Eubli:::;p~()Ee~-t\Lirl thE;
vicinity aHhe subject property; C2~
Ii. Add trees or landscaping on other City property.
Replacement value of a tree shall be determined
using the most recent edition of the Guide for
Plant Appraisal, as prepared by the City Arborist.
Table A -- Tree Canopy-Replacement Ratio Standard
Canopy of Removed Replacement Tree Alternative Tree2
Tree (Maximum
Distance)1
4 feet to 9 feet Two 24-inch box size One 36-inch box size
(minimum)
10 feet to 27 feet Three 24-inch box size Two 36-inch box size \
28 feet to 40 feet Four 24-inch box size Two 48-inch box size \
40 feet to 56 feet Six 24-inch box size Two 36 inch size and
Two 48 inch box size
56 feet to 60 feet Two 24 inch box size Combination of both
and Two 36 inch box the Tree Canopy and
size the replacement value
-
as determined by the
approval authority
60+ feet Combination of both Combination of both \
the Tree Canopy and the Tree Canopy and
the replacement value the replacement value
16
cJ ,/51
as determined by the
approval authority
as determined by the
approval authority
1. To measure an asymmetrical canopy of a tree, the widest measurement
11
1 Ie,PO 'In [lPfpr\y,ir:e (:a,r,nJpv <::17P
_'~'~_'-=-~._~':__ .'~ __, ~-,._"'J. .". -~ .,. ~~____L_':::"'_'_=~'..J.
2. The City shall make the determination if the Alternative Tree standards
can be used.
14.18.190 Protection During Construction.
Protected Specimen, heritage trees and other trees/plantings required to be
retained by virtue of a development application, building permit, or tree removal
permit zoning, ::;ubdi'v'i:::;ion, u::;e permit, variance, or ,^,rchitccturol and Site
Approval Col'flfRitteo application oppre-val, ond all tree::; protected by thi:::; chapter
shall be protected during demolition, grading and construction operations. The
applicant shall guarantee the protection of the existing tree(s) on the site through
a financial instrument acceptable to the Director of Planning and Development.
(Ord. 1543,910.1,1991)
14.18.200 Protection Plan Before Permit Granted.
A. A plan to protect trees described in Section 14.18.190 shall be submitted
to the Director of Public Works and to the Director of Community Development
prior to issuance of a demolition, grading or building permit. The plan shall be
prepared and signed by a licensed landscape architect or arborist certified by the
International Society of Arboriculture and shall be approved by the Director of
Community Development. The Director of Community Development shall
evaluate the tree protection plan based upon the tree protection standards
contained in AppendiX A at the end of this chapter.
17
;l"/5f6
B. The Director of Community Development may waive the requirement for
a tree protection plan both where the construction activity is determined to be
minor in nature (minor building or site modification in any zone) and where the
proposed activity will not significantly modify the ground area within the drip line
or the area immediately surrounding the drip line of the tree. The Director of
Community Development shall determine whether the construction activit)! is
minor in nature and whether the activity will significantly modify the ground area
around the tree drip line. (Ord. 1543, 9 10.2, 1991)
l4.l-8dlO ApplicaHt to Cu-aHH1-tee--P-rotcetiffih
The applicant sholl gunrontee the protection of the existing tree(s) on thc site
through n financial instrument acceptable to the Director of Planning and
Devclopment. (Ord. 1543, ~10.3, 1QD1)
14.18.220 Notice of Action on Permit-Appeal.
A. Notice of the decision on an application for a protected spccimen tree
removal permit by the Planning Commission Director of Community Development
or his designated representative, shall be mailed to the applicant.
B. Any decision made by the Planning Commission Director of Planning
and Development may be appealed to the City Council in accordance with
Chapter 19.136. Such decision may be appealed to the City Council by filing a
written notice of appeal with the City Clerk within ten working days after the
mailing of such notice.
D. C. The City Clerk shall notify the applicant of the date, time and
place for hearing the appeal. The City Council may affirm, reverse, or
modify the decision of the Planning Commission Director of Community
Devclopmeffi, and its decision shall be final. (Ord. 1573, 911.1, 1991;
Ord. 1543,911.1,1991)
18
J. f 50
14.18.230 Penalty.
Violation of this chapter is deemed a misdemeanor unless otherwise
specified. Any person or property owners, or his agent or representative who
engages in tree cutting or removal without a valid tree removal permit is guilty of
a misdemeanor as outlined in Chapter 1.12 of this code and/or may be required
to comply with Sections 14.'18.150, 14.18.170. Notwithstanding any other
provisions of this section, the unauthorized removal of a tree planted solely for
privacy protection purposes pursuant to Section 14.18.060 C shall constitute an
infraction. (Ord. 1810, (part), 1999; Ord.1731, (part), 1996; Ord. 1543, ~ 12.1,
1991 )
APPENDIX A
STANDARDS FOR THE PROTECTION OF TREES DURING GRADING AND
CONSTRUCTION
OPERATIONS
The purpose of this appendix is to outline standards pertaining to the
protection of trees described in Section 14.18.200 of Chapter 14.18. The
standards are broad. A licensed landscape architect or International Society of
Arboriculture certified arborist shall be retained to certify the applicability of the'
standards and develop additional standards as necessary to ensure the property
care, maintenance, and survival of trees designated for protection.
Standards
1. A plot plan shall be prepared describing the relationship of proposed
grading and utility trenching to the trees designated for preservation.
Construction and grading should not significantly raise or lower the ground level
beneath tree drip lines. If the ground level is proposed for modification beneath
19
J -/ {p(J
the drip line, the architectJarborist shall address and mitigate the impact to the
tree(s).
2. All trees to be preserved on the property and all trees adjacent to the
property shall be protected against damage during construction operations by
constructing a four-foot-high fence around the drip line, and armor as needed. '
The extent of fencing and armoring shall be determined by the landscape
architect. The tree protection shall be placed before any excavation or grading is
begun and shall be maintained in repair for the duration of the construction work.
3. No construction operations shall be carried on within the drip line area of
any tree designated to be saved except as is authorized by the Director of
Planning and Development.
4. If trenching is required to penetrate the protection barrier for the tree, the
section of trench in the drip line shall be hand dug so as to preclude the cutting of
roots. Prior to initiating any trenching within the barrier approval by staff with
consultation of an arborist shall be completed.
5. Trees which require any degree of fill around the natural grade shall be
guarded by recognized standards of tree protection and design of tree wells.
6. The area under the drip line of the tree shall be kept clean. No construction
materials nor chemical solvents shall be stored or dumped under a tree.
7. Fires for any reason shall not be made within fifty feet of any tree selected
to remain and shall be limited in size and kept under constant surveillance.
8. The general contractor shall use a tree service licensee, as defined by
California Business and Professional Code, to prune and cut off the branches
that must be removed during the grading or construction. No branches or roots
shall be cut unless at first reviewed by the landscape architectJarborist with
approval of staff.
20
J "'I ~ ,
9. Any damage to existing tree crowns or root systems shall be repaired
immediately by an approved tree surgeon.
Disclaimer:
This Code of Ordinances andlor any other documents that appear on U1is site may not reflect the most cUlTeni legislation
adopted by ttle Municipality. American Legal Publishing Corporation provides these cJocumenls for informational purposes
only. These documents should not be relied upon as H',e definitive authority for locallegislalion. Additionally. the
fonT1atting and pagination of the posted documents v31ies from the formatting and pagination of the official copy. The
official prinif;d copy of 8: Code of Ordinances should be consulted prior to any action bein~l taken.
C--ur \::..nU-lE( ;1:rni"H-:;~UCi1. rC:.j(jj'\JjilqiiH::
cf ::iiiy U-i--.l Cc(h; ui
site, please contact the rvlunidpality direcUy or cDntC:ict Arnerican Le!,;Jal F)ublisllinq tell-free Git 3C;(}.445-~)!.:)~~je.
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techsupport@amleqal.com
1.800.445.5588.
21
d- -I (p:J
Exhibit B
Aki Honda
From: Kiersa Witt on behalf of City of Cupertino Planning Dept.
Sent: Thursday, September 14, 2006 8:28 AM
To: Ciddy Wordell
Cc: Aki Honda
Subject: FW: tree ordinance
Reg81ding the TI"ee Ordinance
-----Original Messagen---
From: Gail Bower [mailto:gbower@levanta.comJ
Sent: Wednesday, September 13, 20065:31 PM
To: City of Cupertino Planning Dept.
Subject: tree ordinance
Hello,
I wanted to ask if we shouldn't put redwoods, sycamores and black cottonwoods on the list of protected trees?
These are all important habit trees and natives.
I hope these can be called out specifically on the tree ordinance information.
Thank you,
Gail Bower
Sr. Marketing Programs Manager
Levanta
qbower@levanta.com
650-403-7246
www.levanta.com
9/1912006
d...-I Co:>
J.. uE;;'-' -'- '..-'-'- ~
AkiHonda
From: Kiersa Witt on behalf of City of Cupertino Planning Dept.
Sent: Tuesday, September 19, 2006 8:26 AM
To: Aki Honda
Subject: FW: Comments on Proposed "Heritage and Specimen Trees Ordinance" Change
-----Original Message-----
From: Yvonne Chen [mailto:ychenOl@yahoo.com]
Sent: Monday, September 18, 20062:59 PM
To: City of Cupertino Planning Dept.
Subject: Comments on Proposed "Heritage and Specimen Trees Ordinance" Change
Dear Cupertino Plamling Commission,
I would like to comment on the proposed "Heritage and Specimen Trees Ordinance" change.
I just moved to Cupertino last year after purchasing a property on a hillside with several California live
oak trees on my property. Thereis one tree that has exposed root system hanging over my garage in
danger of falling over. When I inquired about a permit to remove it, I was shocked at the fee required -
$819 for the "director" permit and $1000 for an arborist inspection. The fee was more than the cost to
actually remove the tree. I don't understand why the permit fee is so high and what does a $1000
arborist fee cover. They both seem so excessive. It would be cheaper for the tree to fall over and let my
homeowner insurance cover my losses since I just have to pay my $1000 deductible. It seems rather
ironic. So now I have a tree that hangs over my garage that I have decided not to remove for now.
I hope this gives you a view from a resident of Cupertino. I think the fees are excessive. And the permit
approval requires a public hearing which is even more hassle since not everyone is familiar with the
process. I think, a tree permit should be like any other building permits (i.e. re-roof' permit) with
reasonable fees. And I hope planning commission will move us in the right direction.
Feel free to contact me if necessary. Thank you.
Yvonne Chen
Cupertino resident
APN 342-17-046
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9/19/2006
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Exhibit C
Provide direction to the Planning Commission regarding proposed amendments to
Chapter 14.18 of the Cupertino Municipal Code (Heritage and Specimen Trees).
City Planner Ciddy Wordell reviewed the staff report via a PowerPoint
presentation.
Donald Anderson said that it is the City's responsibility to deny a resident a
permit for a solar system if any trees are in the way ofthe solar system. He noted
tJ121t in his particular case, the City should have known there was a conflict of
interest with its desire to keep trees even if they were blockll1g bis solar panels.
He read a proposed ordinance that he submitted to Council.
J emlifer Griffin said that the protection of trees is important and most cities have
tree ordinances. She urged Council to make sure street trees and heritage trees are
protected by fencing when homes are constructed.
Julia Tien talked about the exemption of public utilities in pruning protected trees.
She showed a picture of a tree that had been pruned back quite a bit and urged
Council to add some language to the ordinance to minimize the clearance
requirements for protected trees. She suggested that PG&E could install power
pole extensions near protected trees to move the high voltage lines away from the
trees to minimize the amount of pruning required. She noted that this would allow
the trees to keep more of their natural form and look more aesthetic.
City Attorney Charles Kilian noted that the City has not jurisdiction to tell PG&E
what type of wire to use and where to put it. Mayor Lowenthal asked that staff
give Ms. Tien the contact information for the public service contact at PG&E, and
also that he would be happy to be present in the meeting as well.
Council made the following comments to staff regarding amendments to the
ordinance:
1. Tree Protection:
. Confer with the City arborist regarding recommended trees to add to the
list
. Confer with the City naturalist regarding indigenous trees
. Look at the makeup of the City and what trees we currently have to decide
what protected trees to keep on the list
. Add wording to make unsafe or dead trees exempt, but involve the arborist
in making that decision
. Add wording regarding other circumstances leading to the demise of the
tree
2. Approval Authority:
. The Planning Commission should hear issues regarding the illegal cutting
of trees
J. "/ loft;
II Keep approvals at the staff level as much as possible, but do 300 foot
noticing
3. Penalties:
II For civil penalties, the person should replace the tree and pay a fine
II The City Council can modify the penalty on an appeal
II Compare penalties of other cities
II The penalty should increase as each offense occurs
r1 Anyone who removes a tree in violation would need to apply for an after
the fact pennit and come before the Council for condiLlOl1S to be placed 011
the restitution
III After the fact permits are a violation and should cost more
II Any pending applications won't be finalized until there is an approval of
an after the fact pennit
II The location, size, and how long one has to replace a tree is important
4. Noticing:
. 300 feet for staff or Planning Commission
. Put the notice on the tree itself during the appeal time
5. Solar panels:
II No amendment
Other Council comments included:
. Lo'ok into the idea of transplanting trees from mature landscape areas to
areas in the City that are tree deficient
. Look into whether the ordinance should outline tree protection during
construction
J -I (, 1
Exhibit D
10300 Torre Avenue
Cupertino, CA 95014
(408) 777-3308
FAX.. (408) 777-3333
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CITY OF
CUPER,JINO
Conununity Development Department
SUJ\;JfMARY
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AGENDA NO.n
AGENDA DATE August 15, 2006
SUMMARY:
Provide direction to the Planning Commission regarding proposed amendments
to Chapter 14.18 of the Cupertino Municipal Code (Heritage and Specimen
Trees).
RECOMMENDATION:
Staff recommends that the City Council review and provide direction to the
PlannilLg Commission on the proposed Draft Model Ordinance. This draft is in
the beginning stages and is only intended to stimulate discussion. A public
hearing will be scheduled for the September 26, 2006 Planning Commission
meeting.
BACKGROUND:
The City Council has requested that Chapter 14.18 (Heritage and Specimen
Trees) of the CupertllLO Municipal Code be reviewed for proposed amendments.
Staff requests direction from the City Council on the following questions related
to possible amendments:
1. Tree Protection: Is the current protected tree list adequate, or should
additional trees be included, such as eucalyptus, redwood, pine and palm
h'ees?
2. Approval Authority: Should the Planning Commission be retained as the
approval authority for h'ee removal permits, or should staff be allowed to
make determinations in particular situations (e.g., h'ee removal permits
in conjunction with R-l privacy protection plans)?
3. Penalties: What type of penalties should be imposed if a protected h'ee is
removed without a permit? Should there be a monetary (civil) penalty?
Should there be a requirement for additional replacement trees (e.g., two
or three times the replacement ratio standard)? Should a combination of
replacement tree and monetary penalty be imposed?
. 4. Noticing: Should the noticing requirement fm public hearings on h'ee
removal permits follow the minimum 300-foot radius noticing of
property owners for Use Permit and Variances? Should a smaller (e.g.
,neighboring properties) or larger (e.g., 500 foot) radius of notification be
required?
d- -I &B
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. /
Heritage and Specimen 1llOe Ordinance
Page 2
August 15, 2006
5. Solar Panels: Should consideration be given to allow protected trees to be
removed for solar panel access?
DISCUSSION:
Staff has drafted a model ordinance incorporating proposed amendments to
address some of these questions. Tree ordinances from the Town of Los Gatos
and the cities of Campbell, Los Altos, Saratoga, Morgan Hill and Palo Alto were
reviewed as a basis for suggested amendnlenJs to the proposed format and
language of the model ordinance.
Questions
1. Tree Protection:
Is the current protected tree list adequate, or
should additional trees be included, such as
eucalyptus, redwood, pine and palm trees?
Staff Suggestions
All references to "specimen" trees have been changed to "protected"
trees for clearer identification.
New section has been added to clearly list "protected" b'ees. All
previously listed "Specimen" trees have been moved to the new
"protected trees" section.
New section has been added to clearly state that it is unlawful to
remove, damage or kill any protected tree in the City.
Removal of dead trees has been added as exempt from this chapter.
Staff requests Council direction if additional types of trees should be
included as "protected" trees.
2. Approval Authority:
Should the Planrung Commission be retained as
the approval authority for b'ee removal permits,
or should staff be allowed to make
detenninations in particular situations?
New language added to Section 14.18.150 and renamed to" Application
and Approval Authority for Tree Removal Permit" to provide the
review and approval process for trees.
New language added to 14.18.180 and renamed to "Review and
Determination of Application" to provide descriptions of the review and
determination process.
Definition added for "Development application" to identify types of
applications for which the retention or planting of trees may have been
required as part of the approved development application.
New section has been added providing replacement ratio requirements
for removed trees in conjunction with a tree removal permit
Language added in 14.18.140 (Exemptions) to explain that dead b'ees
may be removed upon order of the Director of Community
Development, sheriff or fire department, and that no tree removal fee
shall be charged. A city arborist review would not be necessary where
the Director of Community Development, sheriff or fire department
could make the determination.
Staff requests Council direction to determ.ine if certain protected tree
removals may be detennined at staff level by the Director of Community
Development (e.g., tree removaJ permits in conjunction with R-1 privacy
protection plans).
d-!(pq
"
Heritage and Specimen 1" ~C Ordinance
Page 3
August 15,2006
3. Penalties:
What type of penalties should be imposed if a
protected tree is removed without a permit?
Should there be a monetary (civil) penalty?
S;hould there be a requirement for additional
replacement b'ees (e.g., two or tIu'ee times the
replacement ratio standard)? Should a
combination of replacement tree and monetary
penalty be imposed?
4. Noticing:
Should the noticing requirement for public
hearings on b"ee removal permits follow tile
minimum 300 foot radius noticing of property
owners for Use Permit and Variances? Should a
smaller (e.g. neighboring properties) or larger
(e.g., 500 foot) radius of notification be required?
Staff has not recommended changes to tile" penalty" section, pending
City Council direction. The Council may consider a monetary (civil)
penalty, a higher replacement ratio requirement or a combination of
botIl.
Council may also want to consider adding language tIlat pending and
proposed applications and building permits. not be approved until fue
violation has been remedied.
.__._..~_n_~_______.~___n
__ un'
New section added to address noticing requirernents to follow Use
Permit and Variance noticing requirements, including a minimum 300
foot radius notification of property owners.
5. Solar Panels: Staff requests Council direction on how to address this question.
Should consideration be given to allow protected
trees to be removed for solar panel access?
In addition to the above~referenced draft revisions, staff has added findings in
Section 14.18.180 to consider allowing the removal of trees where the protected
h'ee(s) are a detriment to the subject property due to overplanting or
overcrowding of trees on a site. An example is the recent reh'oactive h'ee removal
application for the removal of six coastal redwood trees that were planted in
small and narrow planter areas between townl1.ouse units at the Joseph Circle
townhouse complex off of Vista Drive. In this particular case, the h'ees were
overgrown and crowding into the planter area causing damage to the adjacent
townhouse walls and fence.
Prepared by: Aki Honda, Senior Planner
SUBMITTED BY:
APPROVED BY:
~/ 20~
(
Ciddy Wordell
City Plam1.er, Community Development
Enclosures:
~
David W. Knapp
City Manager
Exhibit A: Draft Model Ordinance
G: PlanninglPDREPORTlccl2006ITree Ordinance Reporllo Cc. Aug 15.2006
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